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Digital Economy Bill [HL]

Volume 718: debated on Thursday 8 April 2010

Commons Amendments


Moved by

1: Clause 1, leave out Clause 1

My Lords, I beg to move that the House do agree with the Commons in their Amendment 1, as well as Amendments 9, 10, 13 and 14. The first amendment leaves out Clause 1, thus removing the requirement in the Bill for Ofcom to promote investment in electronic communications networks and public service media content. The second amendment leaves out Clause 29, removing the powers from the Bill that would allow Ofcom to appoint providers of regional or local news. The final amendments leave out Clause 43 and Schedule 2. Effectively, this group of amendments removes the provisions on orphan works and extended collective licensing from the Bill.

My Lords, this is a sad outcome to a Bill that started with promise. At the outset of the passage of the Bill through this House, almost all noble Lords accepted that we needed provisions that would avoid the scenario so graphically set out in the recent EU study that forecast the loss of 250,000 jobs by 2015 if current copyright piracy trends continue. There is no doubt that many parts of the Bill were greatly improved in the two and a half months that the Bill spent in this House, particularly in expressly stating that subscribers are presumed innocent until proof is provided otherwise.

Subsequent to the Bill’s passage here, however, the process has been totally unsatisfactory. Second Reading could easily have been held three weeks earlier. The Bill left this House on 15 March and Second Reading could have taken place well before 6 April, when it actually took place in the Commons. Some Committee days on crucial areas such as file-sharing, website blocking and orphan works could have been allocated. Instead of that, we have had the unedifying prospect of a wash-up stitch-up between the Conservative and Labour Benches on many elements of the Bill. Allied to the lack of time was the Government’s unwillingness in some cases to consider amendments or to give assurances that would have delivered a sensible, consensus solution. It is no wonder that so many internet users, Back-Bench MPs and now the Front Bench of my party are firmly of the view that the Bill has not received adequate debate and should not proceed further.

The stitch-up is clearly illustrated by the deletion of Clause 1, which would have given Ofcom valuable new powers. It is also illustrated in particular by the deletion of Clause 29, which would have enabled rollout of the IFNCs. As to the latter, the Government appear not even to have the courage of their own convictions. The clause would have enabled Ofcom to establish independently funded news consortia to provide innovative new methods of providing local and regional news on the Channel 3 network. On these Benches, we worked hard to strengthen this clause so that consortia could be appointed only if they were able to provide high-quality news.

The omission of IFNCs from the Bill is even more disappointing because the clause did not require them to be set up; it made it only a possibility in the future, dependent on successful pilots and a suitable source of funding. Deleting the clause means that we lose this possibility and gain nothing in return. ITV has made it clear that it does not think that it can afford to continue with the provision of local news, which leaves the BBC as the monopoly provider. A constant refrain from all sections of this House, including the Conservative Front Bench, is that that is not a good thing. We find it hard to understand why the Conservative Front Bench has insisted on scuppering IFNCs in this way.

The fact is that, as planned, the trials could have taken place in the Borders, Wales and the north of England without legislation. That would have received majority support here and in another place. However, the Government have said that they are no longer going to continue with letting those contracts for the pilots. That is a major missed opportunity. The Government have abjectly bowed to the Conservative Front Bench.

We support the deletion of Clause 43 at this stage. Throughout the Bill’s passage through the House, we championed the cause of commercial photographers threatened by the orphan works provisions and we secured some improvements. In a proper Commons process, further amendments could have been made exempting contemporary photography, and ministerial assurances could have been given to ensure that only where moral rights applied across the board and there was proper attribution would photography be reinserted. In this way, the cultural sector could have been catered for by the process. However, because of the truncated time in the other place, that could not be done, so the only solution has been to delete Clause 43.

We will not be voting on these Commons amendments, but I hope that we have made the views of these Benches clear and that never again will such a complicated Bill be dealt with in this way at the fag end of a Parliament.

My Lords, my criticisms of these amendments are not quite as general as those of the noble Lord. I regret very much that, under Amendment 9, Clause 29 will perish. The House and the public need to recognise that we are likely to face an even greater problem in regional news in this country. We are going back to the 1950s. If ITV continues on its present path and policy, there will be no ITV regional news and none of those regional news programmes that have a major audience in this country. However, it is worse than the 1950s. At least in the 1950s there were strong regional and local newspapers. I speak as someone who chaired two regional groups. No one would say that this is the best time in the history of British journalism for regional newspapers.

As the noble Lord said, unless we are careful, we will have a BBC monopoly at the regional and local news level. That seems to me entirely wrong. I do not think that anyone in any part of the House wants that outcome. I am an enormous supporter of the BBC’s reporting standards, which, both at home and overseas, are among the best in the world. However, I also think that the BBC needs competition from another major organisation. If we lose that competition from independent television, that will be totally counterproductive for the national interest and democracy.

Clause 29 would have provided a mechanism to allow for that to happen. It was not a particularly radical solution; it would have allowed consortia to be put together. Frankly, it is difficult to see what alternatives there could be to Clause 29. I do not know what the alternative will be. I hope that the noble Lord will give the House some help in his response. The noble Lord who spoke for the Liberal Democrats asserted that the pilot schemes, which had already been announced, have perished. Is that the case? Have they perished? It is one thing to have the policy absolutely withdrawn, but does that mean that all these weeks and months of negotiation in which the consortia have been put together will just be struck through? If so, what about the costs? Will the local newspapers that have taken part in these negotiations simply be told, “Awfully sorry, but we have changed our mind and there is no recompense”? Frankly, this is a sad move. It needs to be established and recognised that there has always been an implied subsidy and support for independent television companies under the analogue system. One of the reasons why ITV is moving away from its support for independent regional news is because that subsidy is being withdrawn. I do not think that the public money issue is as crucial and unique as some might claim. I think this is a very regrettable step. My Select Committee made this clear and I am not in any way going to resile from what it said. We need to tackle this problem and all we are doing at the moment is allowing a position to take place where regional news in this country becomes a BBC monopoly. That is not in the public interest.

My Lords, I do not share the concerns expressed so far about the ending of these consortia having control of local news for two reasons. First, the noble Lord, Lord Fowler, with whom I have disagreed in the past over new technology, expresses himself unfortunately when he says that we are going back to the 1950s. We are not. There is a whole range of local news provided by a whole range of different organisations through, I accept, the internet. Every school now has its own website, as does every sports club and local authority. All the news is available on those websites for anybody who wishes to get it.

The difference, surely, is that under the current system that news is provided by professional journalists. Under what the noble Lord is describing, there are no professional journalists.

As someone who is not a professional journalist and has no high regard for them, I think it is of major benefit that the news is not provided by professional journalists.

My second reason is that the consortium for the Scottish region had been granted to a consortium made up of the two major newspapers—the Scotsman and the Herald—and one television company. I think there was one other organisation involved. They said that they would use their journalists to provide the local Scottish news on television. I am sorry, but I do not see how the arguments about being balanced, rational and impartial can be followed if the same journalists who write in newspapers, expressing their views, then appear on television, trying to be impartial. It just does not work. Therefore, I am quite happy to see this clause disappear.

My Lords, I agree with the noble Lord, Lord Clement-Jones, and the chairman of the Select Committee. I declare an interest, having served on it. This is a terrifyingly worrying step that is being proposed. It is absolutely crucial that the BBC news—for which I, too, have huge regard in every other possible respect—has a competitor of the same standing, with news presenters of the same quality. This is not least because there are so many moves within the BBC to different parts of the country. We heard this in the last session of the Select Committee only yesterday. That would be another illustration of how its dominance can, perhaps, be far too great. I bow to the expertise of the noble Lord, Lord Maxton, on many technical matters, but in this case I cannot agree with him and thoroughly support the noble Lords, Lord Clement-Jones and Lord Fowler.

My Lords, I have been involved in the debate exclusively on Clause 43. It had admirable intentions to free up orphan works and make possible extended collective licensing. It was a victim of the bad programming by the Government, which results in the messiness that we have had to experience through the wash-up. The noble Lord, Lord Clement-Jones, has made the valid point that there were some points which ought to have been discussed in another place, particularly the releasing of—and giving attention to—photographers.

It is interesting that, yesterday, the noble Lord, Lord Rooker, made a significant contribution about post-legislation scrutiny. Of all Bills, this is one which should have had pre-legislation scrutiny. It would have been, I am sure, a very effective Bill had the time been made available for that. I am assured by my own party that if it forms the next Government, it intends to bring back at an early stage a Bill to rectify the deficiencies which sadly exist in the present one. I hope that the party opposite, if it should be in power, would have similar intentions. Lastly, I thank the noble Lord, Lord Young, for the help that he has given us with the Bill and, certainly in my case, to meet certain of my objections and concerns.

My Lords, I will respond generally to what seems to be the Lib Dems’ rallying cry in this process about the wash-up being a stitch-up. Inevitably, during the wash-up process I cannot help thinking of that quote from Hobbes about life being “nasty, brutish and short”. There is an element of that to the wash-up, but I do not think it is any different from how it has been previously. We had that debate yesterday so I do not want to reiterate that.

I think there were two comments about the Bill not having received adequate debate from the noble Lord, Lord Clement-Jones, and then the noble Viscount, Lord Bridgeman. I cannot help smiling and thinking about the many days we have enjoyed each other’s company in this Chamber as we went through approximately 750 amendments to a 48-clause Bill. There are many things that one could say about the Bill but that there has been a lack of scrutiny in this Chamber is not one of them. Maybe it would have benefited from pre-legislative scrutiny; my inner jury is still out on that, having seen the process elsewhere, but I bow to others with more experience. Maybe they are right.

Inevitably, compromises have been made. It is no secret where this Government stood on the question of IFNCs in relation to the points made by the noble Lords, Lord Fowler, Lord Clement-Jones, and others. It was a good move on the part of the Government. We would have been able to establish some effective pilots in an area where competition would certainly be beneficial. Following that bit of dialectic between my noble friend Lord Maxton and the noble Lord, Lord Fowler, in one respect I agree with my noble friend: we are not going back to the 1950s. There is a different media landscape. Nevertheless I also agree with the point made by the noble Lord, Lord Fowler. I do not dismiss the quality of professional journalism quite so readily.

I think the question was, does this mean that IFNCs are dead? It means that securing the plurality of local and regional news becomes even more difficult, and that the risk of a decline of local and regional television news is even more acute, as the noble Lords, Lord Fowler and Lord Clement-Jones, drew to our attention. While IFNCs may still come together in some form as a market-based proposal, the question of whether public funding should be used will need to be dealt with by whichever Government are in office after the election.

Reference was made to the costs of the parties who bid for the pilots. Throughout the procurement process we have made it clear that the Government will not fund, nor are liable for, third-party costs associated with the bidding process.

My Lords, the specific question was: are the Government going ahead with the pilots? Our understanding on these Benches is that the Government are not going ahead with the pilots.

I cannot say any more than I have done. As I say, whichever Government are in office after the election will have to take that decision. They will need to decide whether public funding should be used.

My Lords, I am sorry to make the Minister jump up and down in this final session and I hope that I will not have to make him do that many times today but the fact is that the identity of those running the pilots is already known. The contracts were about to be signed. The Government could have signed those before the start of purdah but have not done so and therefore the pilots fall. They will not take place. Is that not utterly clear?

The pilots are separate from the provisions in the Bill as the pilot process has been run by the Government. It will be for whichever Government are in power after the election to decide whether they will award and fund the IFNC pilot contracts. Signing the contracts will again be a matter for whichever Government are in power after the election.

So the answer is very clearly yes—those pilots will not be going ahead in the immediate future unless this Government are re-elected.

I cannot add any more to the points that I have made. I do not disagree with the noble Lord.

With regard to the points made on copyright by the noble Viscount, Lord Bridgeman, I thank him for his thanks. It was a pleasure to co-operate to try to resolve this but criticism should be levelled rather at his own Front Bench. Other options were possible. We could have handled this in a different way but this is the best, or the least worse, compromise that we could achieve in the wash-up. I believe that I have answered the points that were raised in the debate.

Motion agreed.

Motion on Amendments 2, 6, 7 and 8

Moved by

2: Page 11, line 23, leave out from “transparent” to end of line 26

My Lords, I beg to move that the House do agree with the Commons in their Amendments 2, 6, 7 and 8. This will have the effect of removing the Clause 18 text inserted in this House. Amendments 7 and 8 introduce two new clauses to replace Clause 18. I will focus on these last amendments since this sets out the way the Government think we should proceed.

As I said in this House when Clause 18 was debated during the Bill’s Third Reading, the Government did not believe that Clause 18 as inserted during Report would work. I also highlighted to noble Lords our concerns with introducing such provisions in such a way and at such a time.

The new clauses introduced by Amendments 7 and 8 achieve the same effect desired by Clause 18, but with proper consideration and safeguards. The key benefits of this approach are that, as a power to introduce regulations, it is enforceable. It does not immediately fall foul of the technical standards directive as the existing text would. There will be proper opportunity to consult on the measure, and for Parliament to consider it via the super-affirmative procedure, with any recommendations having to be taken into account. The Secretary of State must consider the proportionality of the regulations, and the evidence that they are necessary to address infringement that is having a serious adverse effect. We can also ensure that any security and law enforcement concerns are properly taken on board.

In addition, should such regulations be introduced, the court will also need to consider carefully legitimate uses and users affected by any injunction as well as having due regard to freedom of expression. We have no intention of this clause being used to restrict freedom of speech. That concern has been expressed by a number of people in the past few days. We are also seeking to ensure that these safeguards are properly considered and ISPs will have no incentive to block sites purely on the basis of an allegation for fear of bearing costs, though at the same time we would need to ensure that ISPs are not allowed to flout the court.

All in all I would say that new Clause 18 does the job of addressing online infringement that is not done through unlawful file-sharing, with the safeguards needed to ensure that the position of internet intermediaries and citizens is properly protected. On that basis, I hope that noble Lords will agree. I beg to move.

My Lords, the Government’s amendments contain several technical and substantive improvements to the original. The improved consultation measures that Amendment 8 contains are welcome. I will therefore support these amendments should the noble Lords to my right continue to object to the very clause they moved and supported on Report.

My Lords, on Report—the Minister clearly set out the history of the provisions—these Benches, together with the Conservative Benches, proposed a new clause to give courts the power to grant injunctions for internet service providers to block access to certain online locations which host copyright material. This new clause was inserted in good faith with the very best of intentions to remedy a major problem relating to overseas websites. However, it soon became clear that it was too blunt an instrument.

At Third Reading, on these Benches we attempted to tidy up the amendment, and the Government promised to bring forward their own amendments. We have now seen those amendments. We had reasonable expectations that our amendments would be subject to proper debate in the other place. But, frankly, we must conclude that we cannot support these new proposals. They are very distant cousins to those that we originally proposed. They have many faults. For example, the proposed new Clause 18 penalises sites that facilitate access or that are used,

“for or in connection with an activity that infringes copyright”.

This is far too wide-ranging and puts even sites such as Google at risk. Google naturally throws up links to sites that encourage online copyright infringement or make peer-to-peer file sharing possible.

Injunctions can be used against not just sites that are making this material available in the present, but sites that have done so in the past or are likely—I repeat, likely—to. This is a very wide range of definitions which mean that innocent sites could be caught out. This brings to mind the Tom Cruise film, “Minority Report”, in which people could be arrested for crimes that they might commit. There is insufficient indication that the rights holders must take reasonable steps to notify the site owner before seeking an injunction. The proposed new clause states that the courts will have to take account of evidence that the rights holder has taken steps to prevent infringement of their material. There is no specific stipulation that the site owner must be contacted first or what this contact must consist of.

The proposed injunctions would be indefinite, which is inappropriate, although there is room for this issue to be addressed through further, unstated, regulations. Injunctions will not cover all service providers. This would allow infringing customers simply to go to a different provider and put ISPs to a great deal of trouble for no reason or, even worse, warp the market by disadvantaging the big internet service providers which are relatively easy targets and driving copyright infringers towards the smaller ISPs that are less likely to be hit with injunctions.

There are some saving graces. The new super-affirmative procedure is of course an improvement, but this should not be enough to save the proposed new clause. The highly unsatisfactory nature of the process in the other place and the wash-up means that a flawed clause could remain on the statute book. We are faced with a take-it-or-leave-it situation. On these Benches, we would leave it.

My Lords, I should like to make a few comments on this proposed new clause. I agree with the noble Lord, Lord Clement-Jones, that we should leave out the proposed new Clause 18 which the Liberal Democrats produced at the last moment and we should leave out the Government’s proposed new clause also. It was a very good effort, and I thank the Minister and his Bill team for working on this and producing something as good as this. It tries to reflect very much the tenor of the debates on this wide-ranging power and how it should be limited to blocking internet websites.

The challenge comes with the wording. This is important because, at the end of the day, the courts will decide how this will be interpreted on the basis of what is written down. It is not up to ministerial statements. The Secretary of State may be making the regulations, but if he is not careful about how the clause is worded the regulations may also contain ambiguous wording, as is the case with proposed new Clause 18.

For instance, it includes the term,

“or is likely to be used”,

in relation to a site that may contain infringing material. The previous time that I had this debate was on amendments to the Computer Misuse Act when we were talking about hacker tools. The Government said that that phrase meant, “more likely than not”. In other words, there was a 50:50 test on that. This is how lawyers regard it. I do not know if that will apply this time, and whether the issue will be interpreted that way in regulations.

The next problem is with the words “service provider”. Noble Lords who have spoken thus far have referred to internet service providers. An ISP is defined as,

“a person who provides an internet access service”.

An internet access service is defined as,

“an electronic communications service that … is provided to a subscriber”.

That is not a service provider. The definition of a service provider is defined in Section 97A(3) of the Copyright, Designs and Patents Act 1988. It states:

“In this section “service provider” has the meaning given to it by regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002”.

Those regulations state:

“service provider” means any person providing an information society service”.

They also state that an “information society service” relates to services within the meaning of Article 1(2) of directive 98/34/EC, as amended by directive 98/48/EC. At that point, I needed to obtain the help of the Library staff.

They found the directives which defined “service” as being,

“any Information Society service, that is to say, any service normally provided for remuneration”,

and so on. That did not help very much, so the Library found two pages from a guide to the Electronic Commerce (EC Directive) Regulations 2002 published by the Department of Trade and Industry, as it then was. We eventually find that a provider of information society services is anyone doing all sorts of economic activities online, and in particular,

“offering online information or commercial communications”—

for example, advertisements—

“or … providing tools allowing for search, access and retrieval of data”.

So it is not just the person providing access, but everyone who provides tools for the access or facilitates it, whether or not any remuneration is involved. There is not just one service provider, but multiple service providers apart from the person who owns or hosts the site and the material. I mention this so that perhaps, even if the clause is forced through, the Secretary of State may look at this when drawing up regulations, because it is far too loose and will cause chaos. It will end up being a dream for lawyers, because at the end of the day it will be tested in the courts.

The main difference between Clause 18 and Section 97A of the Copyright, Designs and Patents Act 1988, which allows for this sort of injunction to be taken out by a court, is that the latter refers only to the High Court, so that people who find their copyright infringed will find taking action too expensive. This will allow it to be done by any court. Therefore, it could be done in a very junior court: I do not know if that could include a magistrates’ court, or whether it would have to be a county court. This will lower the bar so that the people considering it will not necessarily be so well qualified. It will be interesting to see what happens.

I declare an interest as a director of a very small start-up search engine for business purposes. It is not a rival to Google or anything like that. However, if someone decided to knock us out, they would only have to threaten an injunction and we could not do anything about it. We would definitely come under the definition of service provider. That is not special pleading: I am pleading on behalf of all the people who provide services online, which might involve copyrighted text. It is not just film and music: this covers photographs, text and all sorts of other things. That is the problem. The Bill is trying to cover everything instead of distinguishing different forms of online provision.

I would prefer to see Clause 18 knocked out. I agree with the noble Lord, Lord Clement-Jones: we should come back to this very serious question in the next Parliament. That would be a far more sensible way to behave, instead of seeing lawyers make a lot of money and seeing money transferred from the general public, from universities and from all sorts of other establishments to large copyright holders who are mostly resident abroad.

My Lords, I was pondering the response of the noble Lord, Lord Clement-Jones. I did not know whether to describe it as a Damascene conversion or a volte-face. Nor did I know the cause of the change, although I suspect that it may have had something to do with the Liberal Democrat conference not that long ago.

We responded to the demands of this Chamber that we should take away the suggestion about site blocking. We pointed out at the time that it was a very complicated area that would not be resolved by the previous suggested amendment. We have come back with our own amendment, which was endorsed by the Commons and which takes into account some of the concerns expressed, including, as the noble Lord, Lord Clement Jones, accepted, the super-affirmative procedure to provide additional scrutiny. I remind noble Lords that we were willing to incorporate that also into the ill-fated Clause 17 as another way of dealing with future concerns.

The noble Earl, Lord Erroll, raised the point about the definition of ISPs. We would not demur from the conclusions of his research. We agree that it would be an issue for any regulation, which is why consultation is required. I seek also to reassure the noble Earl that an injunction could not be dealt with by a magistrates’ court: it would have to be a higher court. With this amendment we have endeavoured to take into account the complexity of what we are trying to do. We are keen to ensure that we safeguard freedom of expression and do not in any way bring into being something that would impact adversely on the internet or on internet service providers.

Motion agreed.

Motion on Amendments 3 and 4

Moved by

3: Clause 11, page 15, line 25, after “unless” insert—

“(a) the Secretary of State has complied with subsections (6) to (10), and

(b) ”

4: Page 15, line 27, at end insert—

“(6) If the Secretary of State proposes to make an order under this section, the Secretary of State must lay before Parliament a document that—

(a) explains the proposal, and

(b) sets it out in the form of a draft order.

(7) During the period of 60 days beginning with the day on which the document was laid under subsection (6) (“the 60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modifications).

(8) In preparing a draft order under this section to give effect to the proposal, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations, and

(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(9) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document laid before Parliament under subsection (6).

(10) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than 4 days.”

My Lords, as this House debated on several occasions during the Bill’s passage, imposing technical obligations is undoubtedly a significant, and probably controversial, decision. That is why Clause 11 requires the Secretary of State to have regard to the assessment prepared by Ofcom as to whether they should be imposed, as well as to the reports prepared under Clause 9 of the Bill, and this House agreed that these should be published so that everyone can see the evidence that will inform the decision.

It is also right that Parliament should have the greatest opportunity to scrutinise and debate the order. The amendment made in the Commons introduces a super-affirmative procedure with a 60-day period, allowing ample time for Parliament to consider the order fully.

I hope that this step will reassure noble Lords who expressed concerns about safeguards and scrutiny with regard to introducing technical measures. Therefore, I beg to move that the amendments made in the other place be agreed to.

My Lords, when Clauses 4 to 17 were discussed by my honourable friends in the other place at Second Reading, they were broadly supportive of the provisions but made it clear that their support would be conditional on three additional conditions which they believed needed to be put in place and which became apparent after the Bill’s passage through this House. The first was the subject of this amendment: that we needed the super-affirmative procedure to ensure that the next Parliament could properly scrutinise any proposals to include technical measures, which we believe should be introduced only as a last resort based on clear evidence of the need for them. Therefore, we welcome the amendment.

However, we still believe that other provisions are needed in relation to Clauses 4 to 17. My honourable friends said that they needed to resolve the serious problems faced by universities, schools and wi-fi cafes to ensure that they did not fall foul of this legislation, given that they often have one IP address and a very large number of users. In addition, my honourable friends said that we needed to address the timescale within which the initial obligations code was produced by Ofcom. They argued that it could not possibly be given full justice if it were done within a six-month period, given that three of those months have to be spent in consultation with our European colleagues.

All that illustrates yet again the poor process that this Bill has undergone in its latter stages. It would have been relatively straightforward for the Government to accede to those requests if a proper consultative wash-up process had taken place, or indeed if any Committee days had been allocated and certainly if Second Reading had taken place straight after the Bill left this House. In that context, we welcome one-third of the additions that we believe are necessary to make sure that Clauses 4 to 17 are acceptable.

My Lords, although I share with the noble Lord, Lord Clement-Jones, some of the reservations about additional safeguards, I welcome these two amendments. Indeed, I could hardly do otherwise as I moved a similar amendment at an earlier stage of the Bill in the Lords. However, they do not go as far as I would like. As noble Lords who have been following this debate know, I should have preferred this whole section to be withdrawn in the wash-up, with our coming back to it at a more considered rate in a new Parliament.

I regret that this, my last, speech in this Parliament sounds critical of the Government, but in fact it is critical of the totality of the political establishment. All three Front Benches here and in another place have adopted a wrong-headed and unworkable approach to the problem of unlawful file-sharing. Above all, they have failed to grasp that it is an approach that will not yield returns to the creative artists whom these procedures are supposed to protect.

I appreciate that there are noble Lords who do not have the technological grasp of the internet that my noble friend Lord Erroll has, nor of the intricacies of copyright law. I was seeking a way to illustrate this to noble Lords who have participated and, although we are at the fag end of the Session, I shall use an historic analogy which I came across over Easter.

There was once a beautiful and sublime piece of music which, by papal decree, was allowed to be performed only once a year in one chapel in Rome. That restriction lasted for nearly 100 years, until, one day, among the tourists who squeezed in to that closed, single recital, was an early teenager from Austria. He listened to the music and, in today’s parlance, he downloaded it to his memory. Back home in Salzburg, Wolfgang Amadeus—for it was he—downloaded it again from his memory and format shifted it onto paper. Through his social network, he made that format available to the other musical centres of Europe. That piece of music, as many noble Lords will know, was Allegri’s Miserere and, as a result, it has been made available to millions.

What is interesting is not what happened to Mozart, but what happened to the Pope. The Pope saw that his ban was unpopular and totally unworkable. Instead of trying to impose restrictions, he made it available to all the churches in Rome and the papal states for a very small and proportionate donation to the collection plate. In other words, he found an alternative, workable and acceptable business model.

The analogy is not 100 per cent accurate because by Mozart’s time, Allegri’s work would have been out of copyright, although only just. However, I think the Government and the other political parties should learn from that. The Pope recognised reality, but the danger here is that the political leadership is beginning to appear, particularly in relation to the message from the music industry, more protectionist and less pragmatic and less entrepreneurial than the 18th century papacy.

However, these amendments from the Commons allow us to get round that and to think again before we move to the imposition of the sanctions. We have had very widespread scrutiny in this House, although participation has not been high, and I pay particular tribute to the Minister for his patience and forbearance in dealing with those periods of scrutiny. In the likely event of his reappearance at the Dispatch Box after the election, I have no doubt that he will look forward to another session when, through the affirmative resolution procedure that these amendments provide, we shall discuss the whole situation again. During the intervening period and the drawing up of the secondary legislation, I hope we rethink this whole prospect and that we start again, recognising that a broader and a longer-term approach would be more appropriate. Luckily, I think these two amendments from the Commons, at a minimum, give us the opportunity to do that. Therefore, I support them.

My Lords, I very much associate myself with the remarks of the noble Lord, Lord Whitty. They were very well put. I think his analogy is closer than he likes to admit in relation to memorising and format shifting—it is almost exactly what has happened. The world has only just woken up to the real impact that this Bill will have on the digital economy, the digital world and on our moving forward in a digital age. People are extremely concerned. Therefore, I very much welcome these amendments as they might give us a chance to have another look at this when we wake up to the true impact. Perhaps they will give us a chance to roll back some of the provisions so that we do not kill a highly mobile, highly fluid network, in which people can connect to the internet anywhere. I also hope that we do not have such a restrictive world that people relocate out of Britain because it is difficult to do business or because they feel under threat from lawyers. This is a good way forward, so I support the amendments.

My Lords, I want to address some of the points that have been raised, starting with those made by the noble Lord Clement-Jones, who expressed a concern once again about the position of libraries, universities and wi-fi cafes. It might be helpful if we put on record a number occasions our view that we can deal with those organisations in a way that is proportionate and fair. We realise that the provisions of the Bill mean that organisations such as libraries, universities and other educational establishments, as well as public and commercial wi-fi, will face particular challenges. We do not want to hamper their activities in providing internet access or to place unnecessary burdens or procedures on them.

At the same time we cannot set up an obvious loophole that would impact on such bodies in terms of degrading the service that they can offer. We think that there is real scope for proportionate, pragmatic solutions to help universities and libraries to comply with the provisions and minimise any administrative burden. As I said earlier, I was at a university recently where there was a large sign up in the library warning students of the penalties and disciplinary procedures that they would face if they indulged in illegal file-sharing and downloading.

We think that this is something that the code is best suited to deliver, and we urge university and library representative bodies to get involved in the code process. We would find it hard to approve any code that did not recognise in some way the particular position of these and similar institutions, and we would not regard any assessment by Ofcom under Clause 10 as satisfactory unless it took account of the impact on those institutions.

We have given assurances in the past on the question of timescale. We extended it. I have to acknowledge that imitation is perhaps the sincerest form of flattery in relation to super-affirmative measures; we took account of what my noble friend Lord Whitty and others said on this matter.

I was reflecting on the papal analogy that my noble friend Lord Whitty drew to our attention, one that I had heard before. We certainly do not claim infallibility—that would be tempting fate—but neither do we believe that this is a wrong-headed approach. I also reflected that if those, in many cases, young people who indulge in downloading really did have the talent and ability to produce what the young Wolfgang Amadeus produced, we would not have any problems with this situation. However, that is not exactly what they are doing. It was Stravinsky—or someone like him—who made the comment that poor composers borrow and good composers steal, but in many cases these people who are engaging in file-sharing are not composers.

The noble Earl, Lord Erroll, said that people out there were extremely concerned. Well, they are concerned because unfortunately the media, in its desire to report on this issue, cares very little for the facts and simply implies that we are moving to technical measures tomorrow and that people will be disconnected the day after that. I think I heard on the radio the alternative view being put: that there is a long and educative process before we even consider the introduction of technical measures.

I am glad for the support that these measures are receiving, and in those circumstances I beg to move.

Motion agreed.

Motion on Amendment 5

Moved by

5: Page 19, line 42, after “provider” insert “or owner”

My Lords, the aim of Commons Amendment 5 is to tidy up the text of enforcement of obligations and correct a small drafting error. It has no other purpose. Likewise, Amendment 11 in the group is a tidying amendment that aligns the commencement of the substantive provisions on the public lending right in Clause 45 and associated repeal in Schedule 3.

On Amendment 5A, standing in the name of the noble Earl, Lord Erroll, we do not agree that “and” should be substituted for “or”. The word “provider” used at the beginning of the sentence should be used at the end of it. That is what the amendment made in another place achieves. On that basis, I hope that the noble Earl will agree to withdraw his amendment.

Amendment 5A, as an amendment to Commons Amendment 5

Moved by

5A: Line 1, leave out “or” and insert “and”

I do not intend to waste any time on this; it is just that when I looked at the amendment, I could see that “or owner” followed exactly the pattern of the rest of the clause. It suddenly occurred to me that the steps taken to mitigate or prevent a contravention could be taken by either the provider or the owner. Perhaps it would be wise for them both to be notified, because you could not be certain which one should or should not be taking the steps. You could have a mistake whereby one had been notified whereas the other had, or should have, taken the steps, but did not know about the notification.

The trouble is that I was reading the clause and did not have time fully to research Sections 94 to 96 of the Communications Act 2003. There may be more text in there that might tell us some more about that. I move the amendment for clarification that you could not have a mistake whereby one complied and the other got the notification. That is why I thought that it should state “and”. That is a point of detail and I do not intend to press it.

On taking steps to make sure that you do not contravene, I noticed that Parliament is already doing that. I was just tracking down some comments on the Bill. One from the University of Cambridge happened to have a link which I discovered went to Pirate Bay, except that you cannot get there from Parliament any more. It has already started blocking sites that it thinks are likely to be infringing. Are they or are they not? It amused me that Parliament has already taken proactive steps.

With that comment, I am sure that “or” is the right way round and that buried in Section 94 is the clue to it all which forces it down a particular route. I beg to move.

Briefly, I did not quite seize what the noble Earl was saying at the end of his delivery to us. It seemed to me that the government answer was a syntactical one, merely saying that the construction of the sentence was right. The noble Earl's objection is that there is a mechanical defect, in that the wrong person may be alerted as the result of the current form of the Bill. We have not had an answer to that. The noble Earl has already said that he will not press the amendment, which I hope will not relieve the Minister from telling us what are the mechanical results.

My Lords, I was intending to respond—to reassure the ever watchful noble Lord, Lord Elton.

It is clear that the effect of the amendment is that Ofcom is to have regard to steps taken by a provider in relation to contravention of obligations notified to that provider, and steps taken by an owner in relation to contraventions notified to the owner. The noble Earl, Lord Erroll, asked whether notification could be to one and steps taken by another. The answer is no. I hope that that is suitable clarification and that the noble Earl, Lord Erroll, will feel able to withdraw his amendment.

My Lords, I will take the Minister’s assurance, because I suspect that that is true. I am not quite sure how it works in certain circumstances, but I do not want to delay the House at this stage. I am sure that others are much more aware than I am of the intricacy of these things, but it would be a lot easier if we wrote simple law in plain English so that you could trace these things through rather than having to refer to multitudes of regulations and Bills to find the effect of one on the other. No wonder there is so much chaos and the lawyers make so much money. With that, however, I beg leave to withdraw the amendment.

Amendment 5A withdrawn.

Motion agreed.

Motion on Amendment 6

Moved by

6: Leave out Clause 18

Motion agreed.

Motion on Amendment 7

Moved by

7: Insert the following new Clause-

“Power to make provision about injunctions preventing access to locations on the internet(1) The Secretary of State may by regulations make provision about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright.

(2) “Blocking injunction” means an injunction that requires a service provider to prevent its service being used to gain access to the location.

(3) The Secretary of State may not make regulations under this section unless satisfied that-

(a) the use of the internet for activities that infringe copyright is having a serious adverse effect on businesses or consumers,(b) making the regulations is a proportionate way to address that effect, and(c) making the regulations would not prejudice national security or the prevention or detection of crime.(4) The regulations must provide that a court may not grant an injunction unless satisfied that the location is-

(a) a location from which a substantial amount of material has been, is being or is likely to be obtained in infringement of copyright,(b) a location at which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright, or(c) a location which has been, is being or is likely to be used to facilitate access to a location within paragraph (a) or (b). (5) The regulations must provide that, in determining whether to grant an injunction, the court must take account of-

(a) any evidence presented of steps taken by the service provider, or by an operator of the location, to prevent infringement of copyright in the qualifying material,(b) any evidence presented of steps taken by the copyright owner, or by a licensee of copyright in the qualifying material, to facilitate lawful access to the qualifying material,(c) any representations made by a Minister of the Crown,(d) whether the injunction would be likely to have a disproportionate effect on any person's legitimate interests, and(e) the importance of freedom of expression.(6) The regulations must provide that a court may not grant an injunction unless notice of the application for the injunction has been given, in such form and by such means as is specified in the regulations, to-

(a) the service provider, and(b) operators of the location.(7) The regulations may, in particular-

(a) make provision about when a location is, or is not, to be treated as being used to facilitate access to another location,(b) provide that notice of an application for an injunction may be given to operators of a location by being published in accordance with the regulations,(c) provide that a court may not make an order for costs against the service provider,(d) make different provision for different purposes, and(e) make incidental, supplementary, consequential, transitional, transitory or saving provision. (8) The regulations may-

(a) modify Chapter 6 of Part 1 of the Copyright, Designs and Patents Act 1988, and(b) make consequential provision modifying Acts and subordinate legislation. (9) Regulations under this section may not include provision in respect of proceedings before a court in England and Wales without the consent of the Lord Chancellor.

(10) Regulations under this section must be made by statutory instrument.

(11) A statutory instrument containing regulations under this section may not be made unless-

(a) the Secretary of State has complied with section [Consultation and Parliamentary scrutiny], and(b) a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(12) In this section-

“copyright owner” has the same meaning as in Part 1 of the Copyright, Designs and Patents Act 1988;“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;“modify” includes amend, repeal or revoke;“operator”, in relation to a location on the internet, means a person who has editorial control over material available at the location;“qualifying material”, in relation to an injunction, means the material taken into account by the court for the purposes of provision made under subsection (4);“service provider” has the same meaning as in section 97A of the Copyright, Designs and Patents Act 1988;“subordinate legislation” has the same meaning as in the Interpretation Act 1978. (13) In the application of this section to Scotland-

“costs” means expenses;“injunction” means interdict.”

Amendment 7A to Motion 7

Moved by

That this House do agree with the Commons in their Amendment 7, leave out “agree” and insert “disagree”.

I spoke to this earlier, so it is probably better to say simply that I support the noble Lord, Lord Clement-Jones, in that it would be better to leave this to another Parliament. The very dangerous original Clause 17 has now been eliminated and replaced by Clause 18 put forward by the Liberal Democrats, which was a good try but had flaws. As I said earlier, there are flaws here. For instance, where I think they mean to refer to an internet service provider, they refer only to a service provider, which is a completely different animal. That is dangerous, so I would move that this was left to another Parliament.

Motion agreed.

Motion on Amendment 8

Moved by

8: Insert the following new Clause-

“Consultation and Parliamentary scrutiny(1) Before making regulations under section [Power to make provision about injunctions preventing access to locations on the internet] the Secretary of State must consult-

(a) the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland,(b) the persons that the Secretary of State thinks likely to be affected by the regulations (or persons who represent such persons), and(c) such other persons as the Secretary of State thinks fit.(2) If, following the consultation under subsection (1), the Secretary of State proposes to make regulations under section [Power to make provision about injunctions preventing access to locations on the internet], the Secretary of State must lay before Parliament a document that-

(a) explains the proposal and sets it out in the form of draft regulations,(b) explains the reasons why the Secretary of State is satisfied in relation to the matters listed in section [Power to make provision about injunctions preventing access to locations on the internet](3)(a) to (c), and(c) contains a summary of any representations made during the consultation under subsection (1).(3) During the period of 60 days beginning with the day on which the document was laid under subsection (2) (“the 60-day period”), the Secretary of State may not lay before Parliament a draft statutory instrument containing regulations to give effect to the proposal (with or without modifications).

(4) In preparing draft regulations under section [Power to make provision about injunctions preventing access to locations on the internet] to give effect to the proposal, the Secretary of State must have regard to any of the following that are made with regard to the draft regulations during the 60-day period-

(a) any representations, and(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations.(5) When laying before Parliament a draft statutory instrument containing regulations to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document laid before Parliament under subsection (2).

(6) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than 4 days.”

Amendment to the Motion

Tabled by

8A: As an amendment to the motion that this House do agree with the Commons in their Amendment 8, leave out “agree” and insert “disagree”.

Amendment to the Motion not moved.

Motion agreed.

Motion on Amendments 9 to 11

Moved by

9: Leave out Clause 29

10: Leave out Clause 43

11: Page 59, line 44, at end insert "and the entry in Schedule 3 relating to the Public Lending Right Act 1979 (and section 47 so far as it relates to that entry)"

Motion agreed.

Motion on Amendment 12

Moved by

12: Page 60, line 3, leave out subsection (2)

My Lords, this is the privilege amendment. This is one of the last amendments and, before I conclude my remarks, this is a fitting moment for me to pay tribute to my Bill team—or part of it—over there in the Box, ably led by Colin Perry. They have performed a marathon task with great ability and, on occasions, humour as well, which has made my task that much more pleasant. I beg to move that the amendment made in the other place is agreed to.

My Lords, I do not want to delay the House, as I can see serried ranks around me—unusually for the Digital Economy Bill. I thank the Minister for his courtesy throughout the passage of the Bill. We have had our disagreements, most latterly over the product of the wash-up. That has been common across a number of Bills, so my criticism was not directed at him in particular. He has dealt with a great swathe of the Bill with good humour, and many amendments to it have been made. Sadly, it is not yet good enough, but I hope that, in making the regulations, the Government will mitigate some of its worst impacts.

My Lords, I have the utmost respect for the Minister. It is not a rule, I think, that the privilege amendment is moved by a privy counsellor, but it is the usual custom. Although the Minister is enormously distinguished, I do not think that he is yet a privy counsellor. It is a pity that the amendment was not so moved.

I, too, thank the Minister for his patience with all the opposition parties. I only hope that his damaged hip is not a direct result of the Digital Economy Bill.

I thank noble Lords. It has been a long and winding road. I cannot quite agree with the noble Lord, Lord Clement-Jones, about the nature of the finished product. The Bill may not be perfect, but in doing its best to protect the creative economy, which is what is at its core, it is a step in the right direction. Of course, time will tell whether that analysis is right. I thank noble Lords for the way in which they have participated in our debate. I think that we would all agree that it has been one for the connoisseurs.

Motion agreed.

Motion on Amendments 13 and 14

Moved by

13: Leave out Schedule 2

14: Line 2, leave out from “copyright” to “to” in line 3 and insert “and about penalties for infringement of copyright and performers' rights”

Motion agreed.