Digital Economy Bill [HL]

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House of Commons

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]

Digital Economy Bill [HL]
14

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Obligations to limit internet access: assessment and preparation
After section 124F of the Communications Act 2003 insert—
“124G
Obligations to limit internet access: assessment and preparation
(1)
The Secretary of State may direct OFCOM to—
(a)
assess whether one or more technical obligations should be
5
imposed on internet service providers;
(b)
take steps to prepare for the obligations;
(c)
provide a report on the assessment or steps to the Secretary of
State.
(2)
A “technical obligation”, in relation to an internet service provider, is an
10
obligation for the provider to take a technical measure against some or
all relevant subscribers to its service for the purpose of preventing or
reducing infringement of copyright by means of the internet.
(3)
A “technical measure” is a measure that—
(a)
limits the speed or other capacity of the service provided to a
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subscriber;
(b)
prevents a subscriber from using the service to gain access to
particular material, or limits such use;
(c)
suspends the service provided to a subscriber; or
(d)
limits the service provided to a subscriber in another way.
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(4)
A subscriber to an internet access service is “relevant” if the subscriber
is a relevant subscriber, within the meaning of section 124B(3), in
relation to the provider of the service and one or more copyright
owners.
(5)
The assessment and steps that the Secretary of State may direct
25
OFCOM to carry out or take under subsection (1) include, in
particular—
(a)
consultation of copyright owners, internet service providers,
subscribers or any other person;
(b)
an assessment of the likely efficacy of a technical measure in
30
relation to a particular type of internet access service; and
(c)
steps to prepare a proposed technical obligations code.
(6)
Internet service providers and copyright owners must give OFCOM
any assistance that OFCOM reasonably require for the purposes of
complying with any direction under this section.
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(7)
The Secretary of State must lay before Parliament any direction under
this section.
(8)
OFCOM must publish every report under this section—
(a)
as soon as practicable after they send it to the Secretary of State,
and
40
(b)
in such manner as they consider appropriate for bringing it to
the attention of persons who, in their opinion, are likely to have
an interest in it.
(9)
OFCOM may exclude information from a report when it is published
under subsection (8) if they consider that it is information that they
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could refuse to disclose in response to a request under the Freedom of
Information Act 2000.”
11
Obligations to limit internet access
After section 124G of the Communications Act 2003 insert—
“124H
Obligations to limit internet access
5
(1)
The Secretary of State may by order impose a technical obligation on
internet service providers if—
(a)
OFCOM have assessed whether one or more technical
obligations should be imposed on internet service providers;
and
10
(b)
taking into account that assessment, reports prepared by
OFCOM under section 124F, and any other matter that appears
to the Secretary of State to be relevant, the Secretary of State
considers it appropriate to make the order.
(2)
No order may be made under this section within the period of 12
15
months beginning with the first day on which there is an initial
obligations code in force.
(3)
An order under this section must specify the date from which the
technical obligation is to have effect, or provide for it to be specified.
(4)
The order may also specify—
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(a)
the criteria for taking the technical measure concerned against a
subscriber;
(b)
the steps to be taken as part of the measure and when they are
to be taken.
(5)
No order is to be made under this section unless a draft of the order has
25
been laid before Parliament and approved by a resolution of each
House.”
12
Code by OFCOM about obligations to limit internet access
After section 124H of the Communications Act 2003 insert—
“124I
Code by OFCOM about obligations to limit internet access
30
(1)
For any period during which there are one or more technical
obligations in force under section 124H, OFCOM must by order make
a technical obligations code for the purpose of regulating those
obligations.
(2)
The code may be made separately from, or in combination with, any
35
initial obligations code under section 124D.
(3)
A code under this section may—
(a)
do any of the things mentioned in section 124C(3) to (5) or
section 124D(5)(a) to (g); and
(b)
make other provision for the purpose of regulating the technical
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obligations.

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(4)
OFCOM must not make a code under this section unless they are
satisfied that it meets the criteria set out in section 124J.
(5)
OFCOM must—
(a)
keep a code under this section under review; and
(b)
by order make any amendment of it that is necessary to ensure
5
that while it is in force it continues to meet the criteria set out in
section 124J.
(6)
The consent of the Secretary of State is required for the making or
amendment by OFCOM of a code under this section.
(7)
Section 403 applies to the power of OFCOM to make an order under
10
this section.
(8)
A statutory instrument containing an order made by OFCOM under
this section is subject to annulment in pursuance of a resolution of
either House of Parliament.”
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Contents of code about obligations to limit internet access
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After section 124I of the Communications Act 2003 insert—
“124J
Contents of code about obligations to limit internet access
(1)
The criteria referred to in section 124I(4) are—
(a)
that the requirements concerning enforcement and related
matters are met in relation to the code (see subsections (2) and
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(3));
(b)
that the requirements concerning subscriber appeals are met in
relation to the code (see section 124K);
(c)
that it makes any provision about contributions towards
meeting costs that is required to be included by an order under
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section 124M;
(d)
that it makes any other provision that the Secretary of State
requires it to make;
(e)
that the provisions of the code are objectively justifiable in
relation to the matters to which it relates;
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(f)
that those provisions are not such as to discriminate unduly
against particular persons or against a particular description of
persons;
(g)
that those provisions are proportionate to what they are
intended to achieve; and
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(h)
that, in relation to what those provisions are intended to
achieve, they are transparent.
(2)
The requirements concerning enforcement and related matters are—
(a)
that OFCOM have, under the code, the functions of
administering and enforcing it, including the function of
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resolving owner-provider disputes;
(b)
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
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code; and

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(c)
that there are adequate arrangements under the code for the
costs incurred by OFCOM in administering and enforcing the
code to be met by internet service providers and copyright
owners.
(3)
The provision made concerning enforcement and related matters may
5
also (unless the Secretary of State requires otherwise) include, in
particular—
(a)
provision for the payment, to a person specified in the code, of
a penalty not exceeding the maximum penalty for the time
being specified in section 124L(2);
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(b)
provision requiring a copyright owner to indemnify an internet
service provider for any loss or damage resulting from the
owner’s infringement or error in relation to the code or the
copyright infringement provisions.
(4)
In this section “owner-provider dispute” means a dispute that—
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(a)
is between persons who are copyright owners or internet
service providers; and
(b)
relates to an act or omission in relation to a technical obligation
or a technical obligations code.”
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Subscriber appeals
20
After section 124J of the Communications Act 2003 insert—
“124K
  Subscriber appeals
(1)
The requirements concerning subscriber appeals are—
(a)
for the purposes of section 124E(1)(h), the requirements of
subsections (2) to (8); and
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(b)
for the purposes of section 124J(1)(b), the requirements of
subsections (2) to (11).
(2)
The requirements of this subsection are—
(a)
that the code confers on subscribers the right to bring a
subscriber appeal and, in the case of a technical obligations
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code, a further right of appeal to the First-tier Tribunal;
(b)
that there is a person who, under the code, has the function of
determining subscriber appeals;
(c)
that that person is for practical purposes independent (so far as
determining subscriber appeals is concerned) of internet service
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providers, copyright owners and OFCOM; and
(d)
that there are adequate arrangements under the code for the
costs incurred by that person in determining subscriber appeals
to be met by internet service providers, copyright owners and
the subscriber concerned.
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(3)
The code must provide for the grounds of appeal (so far as an appeal
relates to, or to anything done by reference to, a copyright infringement
report) to include the following—
(a)
that the apparent infringement to which the report relates was
not an infringement of copyright;
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(b)
that the report does not relate to the subscriber’s IP address at
the time of the apparent infringement.

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(4)
The code must provide for the grounds of appeal to include
contravention by the copyright owner or internet service provider of
the code or of an obligation regulated by the code.
(5)
The code must provide that an appeal on any grounds must be
determined in favour of the subscriber unless the copyright owner or
5
internet service provider shows that, as respects any copyright
infringement report to which the appeal relates or by reference to
which anything to which the appeal relates was done (or, if there is
more than one such report, as respects each of them)—
(a)
the apparent infringement was an infringement of copyright,
10
and
(b)
the report relates to the subscriber’s IP address at the time of
that infringement.
(6)
The code must provide that, where a ground mentioned in subsection
(3) is relied on, the appeal must be determined in favour of the
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subscriber if the subscriber shows that—
(a)
the act constituting the apparent infringement to which the
report relates was not done by the subscriber, and
(b)
the subscriber took reasonable steps to prevent other persons
infringing copyright by means of the internet access service.
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(7)
The powers of the person determining subscriber appeals must include
power—
(a)
to secure so far as practicable that a subscriber is not prejudiced
for the purposes of the copyright infringement provisions by an
act or omission in respect of which an appeal is determined in
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favour of the subscriber;
(b)
to make an award of compensation to be paid by a copyright
owner or internet service provider to a subscriber affected by
such an act or omission; and
(c)
where the appeal is determined in favour of the subscriber, to
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direct the copyright owner or internet service provider to
reimburse the reasonable costs of the subscriber.
(8)
The code must provide that the power to direct the reimbursement of
costs under subsection (7)(c) is to be exercised to award reasonable
costs to a subscriber whose appeal is successful, unless the person
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deciding the appeal is satisfied that it would be unjust to give such a
direction having regard to all the circumstances including the conduct
of the parties before and during the proceedings.
(9)
In the case of a technical obligations code, the powers of the person
determining subscriber appeals must include power—
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(a)
on an appeal in relation to a technical measure or proposed
technical measure—
(i)
to confirm the measure;
(ii)
to require the measure not to be taken or to be
withdrawn;
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(iii)
to substitute any other technical measure that the
internet service provider has power to take;
(b)
to exercise the power mentioned in paragraph (a)(ii) or (iii)
where an appeal is not upheld but the person determining it is

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satisfied that there are exceptional circumstances that justify the
exercise of the power;
(c)
to take any steps that OFCOM could take in relation to the act
or omission giving rise to the technical measure; and
(d)
to remit the decision whether to confirm the technical measure,
5
or any matter relating to that decision, to OFCOM.
(10)
In the case of a technical obligations code, the code must make
provision—
(a)
enabling a determination of a subscriber appeal to be appealed
to the First-tier Tribunal, including on grounds that it was based
10
on an error of fact, wrong in law or unreasonable;
(b)
giving the First-tier Tribunal, in relation to an appeal to it, the
powers mentioned in subsections (7) and (9); and
(c)
in relation to recovery of costs awarded by the Tribunal.
(11)
In the case of a technical obligations code, the code must include
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provision to secure that a technical measure is not taken against a
subscriber until—
(a)
the period for bringing a subscriber appeal, or any further
appeal to the First-tier Tribunal, in relation to the proposed
measure has ended (or the subscriber has waived the right to
20
appeal); and
(b)
any such subscriber appeal or further appeal has been
determined, abandoned or otherwise disposed of.”
15
Enforcement of obligations
After section 124K of the Communications Act 2003 insert—
25
“124L
Enforcement of obligations
(1)
Sections 94 to 96 apply in relation to a contravention of an initial
obligation or a technical obligation, or a contravention of an obligation
under section 124G(6), as they apply in relation to a contravention of a
condition set out under section 45.
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(2)
The amount of the penalty imposed under section 96 as applied by this
section is to be such amount not exceeding £250,000 as OFCOM
determine to be—
(a)
appropriate; and
(b)
proportionate to the contravention in respect of which it is
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imposed.
(3)
In making that determination OFCOM must have regard to—
(a)
any representations made to them by the internet service
provider or copyright owner on whom the penalty is imposed;
(b)
any steps taken by the provider or owner towards complying
40
with the obligations contraventions of which have been notified
to the provider under section 94 (as applied); and
(c)
any steps taken by the provider or owner for remedying the
consequences of those contraventions.

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(4)
The Secretary of State may by order amend this section so as to
substitute a different maximum penalty for the maximum penalty for
the time being specified in subsection (2).
(5)
No order is to be made containing provision authorised by subsection
(4) unless a draft of the order has been laid before Parliament and
5
approved by a resolution of each House.”
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Sharing of costs
After section 124L of the Communications Act 2003 insert—
“124M
Sharing of costs
(1)
The Secretary of State may by order specify provision that must be
10
included in an initial obligations code or a technical obligations code
about payment of contributions towards costs incurred under the
copyright infringement provisions.
(2)
Any provision specified under subsection (1) must relate to payment of
contributions by one or more of the following only—
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(a)
copyright owners;
(b)
internet service providers;
(c)
in relation to a subscriber appeal or a further appeal by a
subscriber to the First-tier Tribunal, the subscriber.
(3)
Provision specified under subsection (1) may relate to, in particular—
20
(a)
payment by a copyright owner of a contribution towards the
costs that an internet service provider incurs;
(b)
payment by a copyright owner or internet service provider of a
contribution towards the costs that OFCOM incur.
(4)
Provision specified under subsection (1) may include, in particular—
25
(a)
provision about costs incurred before the provision is included
in an initial obligations code or a technical obligations code;
(b)
provision for payment in advance of expected costs (and for
reimbursement of overpayments where the costs incurred are
less than expected);
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(c)
provision about how costs, expected costs or contributions must
be calculated;
(d)
other provision about when and how contributions must be
paid.
(5)
No order is to be made under this section unless a draft of the order has
35
been laid before Parliament and approved by a resolution of each
House.”
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Interpretation and consequential provision
(1)
After section 124M of the Communications Act 2003 insert—
“124N
Interpretation
40
In sections 124A to 124M and this section—