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10 | Obligations to limit internet access: assessment and preparation |
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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 |
| |
| |
(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 |
| 15 |
| |
(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. |
| 20 |
(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 |
| |
| |
(5) | The assessment and steps that the Secretary of State may direct |
| 25 |
OFCOM to carry out or take under subsection (1) include, in |
| |
| |
(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. |
| 35 |
(7) | The Secretary of State must lay before Parliament any direction under |
| |
| |
(8) | OFCOM must publish every report under this section— |
| |
(a) | as soon as practicable after they send it to the Secretary of State, |
| |
| 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 |
| |
| |
(9) | OFCOM may exclude information from a report when it is published |
| |
under subsection (8) if they consider that it is information that they |
| 45 |
|
| |
|
| |
|
could refuse to disclose in response to a request under the Freedom of |
| |
| |
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; |
| |
| 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— |
| 20 |
(a) | the criteria for taking the technical measure concerned against a |
| |
| |
(b) | the steps to be taken as part of the measure and when they are |
| |
| |
(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 |
| |
| |
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 |
| |
| |
(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 |
| 40 |
| |
|
| |
|
| |
|
(4) | OFCOM must not make a code under this section unless they are |
| |
satisfied that it meets the criteria set out in section 124J. |
| |
| |
(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 |
| |
| |
(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 |
| |
(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.” |
| |
13 | Contents of code about obligations to limit internet access |
| 15 |
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 |
| 20 |
| |
(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 |
| 25 |
| |
(d) | that it makes any other provision that the Secretary of State |
| |
| |
(e) | that the provisions of the code are objectively justifiable in |
| |
relation to the matters to which it relates; |
| 30 |
(f) | that those provisions are not such as to discriminate unduly |
| |
against particular persons or against a particular description of |
| |
| |
(g) | that those provisions are proportionate to what they are |
| |
| 35 |
(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 |
| 40 |
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 |
| 45 |
| |
|
| |
|
| |
|
(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 |
| |
| |
(3) | The provision made concerning enforcement and related matters may |
| 5 |
also (unless the Secretary of State requires otherwise) include, in |
| |
| |
(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); |
| 10 |
(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— |
| 15 |
(a) | is between persons who are copyright owners or internet |
| |
| |
(b) | relates to an act or omission in relation to a technical obligation |
| |
or a technical obligations code.” |
| |
| 20 |
After section 124J of the Communications Act 2003 insert— |
| |
| |
(1) | The requirements concerning subscriber appeals are— |
| |
(a) | for the purposes of section 124E(1)(h), the requirements of |
| |
subsections (2) to (8); and |
| 25 |
(b) | for the purposes of section 124J(1)(b), the requirements of |
| |
| |
(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 |
| 30 |
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 |
| 35 |
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. |
| 40 |
(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; |
| 45 |
(b) | that the report does not relate to the subscriber’s IP address at |
| |
the time of the apparent infringement. |
| |
|
| |
|
| |
|
(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 |
| |
(b) | the report relates to the subscriber’s IP address at the time of |
| |
| |
(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 |
| 15 |
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. |
| 20 |
(7) | The powers of the person determining subscriber appeals must include |
| |
| |
(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 |
| 25 |
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 |
| 30 |
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 |
| 35 |
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— |
| 40 |
(a) | on an appeal in relation to a technical measure or proposed |
| |
| |
(i) | to confirm the measure; |
| |
(ii) | to require the measure not to be taken or to be |
| |
| 45 |
(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 |
| |
|
| |
|
| |
|
satisfied that there are exceptional circumstances that justify the |
| |
| |
(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 |
| |
| |
(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 |
| 15 |
provision to secure that a technical measure is not taken against a |
| |
| |
(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 |
| |
(b) | any such subscriber appeal or further appeal has been |
| |
determined, abandoned or otherwise disposed of.” |
| |
15 | Enforcement of obligations |
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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. |
| 30 |
(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 |
| |
| |
| |
(b) | proportionate to the contravention in respect of which it is |
| 35 |
| |
(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. |
| |
|
| |
|
| |
|
(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.” |
| |
| |
After section 124L of the Communications Act 2003 insert— |
| |
| |
(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— |
| 15 |
| |
(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 |
| |
| 30 |
(c) | provision about how costs, expected costs or contributions must |
| |
| |
(d) | other provision about when and how contributions must be |
| |
| |
(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 |
| |
| |
17 | Interpretation and consequential provision |
| |
(1) | After section 124M of the Communications Act 2003 insert— |
| |
| 40 |
In sections 124A to 124M and this section— |
| |
|
| |
|