Digital Economy Bill [HL]

House of Commons

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]

Digital Economy Bill [HL]
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“apparent infringement”, in relation to a copyright infringement
report, means the infringement of copyright that the report
states appears to have taken place;
“copyright infringement list” has the meaning given in section
124B(2);
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“copyright infringement provisions” means sections 124A to 124M
and this section;
“copyright infringement report” has the meaning given in section
124A(3);
“copyright owner” means—
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(a)
a copyright owner within the meaning of Part 1 of the
Copyright, Designs and Patents Act 1988 (see section
173 of that Act); or
(b)
someone authorised by that person to act on the
person’s behalf;
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“copyright work” has the same meaning as in Part 1 of the
Copyright, Designs and Patents Act 1988 (see section 1(2) of that
Act);
“initial obligations” has the meaning given in section 124C(1);
“initial obligations code” has the meaning given in section
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124A(2);
“internet access service” means an electronic communications
service that—
(a)
is provided to a subscriber;
(b)
consists entirely or mainly of the provision of access to
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the internet; and
(c)
includes the allocation of an IP address or IP addresses
to the subscriber to enable that access;
“internet service provider” means a person who provides an
internet access service;
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“IP address” means an internet protocol address;
“subscriber”, in relation to an internet access service, means a
person who—
(a)
receives the service under an agreement between the
person and the provider of the service; and
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(b)
does not receive it as a communications provider;
“subscriber appeal” means—
(a)
in relation to an initial obligations code, an appeal by a
subscriber on grounds specified in the code in relation
to—
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(i)
the making of a copyright infringement report;
(ii)
notification under section 124A(4);
(iii)
the inclusion or proposed inclusion of an entry
in a copyright infringement list; or
(iv)
any other act or omission in relation to an initial
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obligation or an initial obligations code;
(b)
in relation to a technical obligations code, an appeal by
a subscriber on grounds specified in the code in relation
to—
(i)
the proposed taking of a technical measure; or
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(ii)
any other act or omission in relation to a
technical obligation or a technical obligations
code;
“technical measure” has the meaning given in section 124G(3);
“technical obligation” has the meaning given in section 124G(2);
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“technical obligations code” means a code in force under section
124I.”
(2)
In section 135(3) of that Act (information required for purposes of Chapter 1
functions), after paragraph (i) insert—
“(ia)
preparing a report under section 124F;
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(ib)
carrying out an assessment, taking steps or providing a report
under section 124G;”.
(3)
In Schedule 8 to that Act (decisions not subject to appeal to the Competition
Appeal Tribunal), after paragraph 9 insert—
“9A
A decision relating to any of sections 124A to 124N or to anything
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done under them.”
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Preventing access to specified online locations for the prevention of online
copyright infringement
In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A
insert—
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“97B
Preventing access to specified online locations for the prevention of
online copyright infringement
(1)
The High Court (in Scotland, the Court of Session) shall have power to
grant an injunction against a service provider, requiring it to prevent
access to online locations specified in the order of the Court for the
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prevention of online copyright infringement.
(2)
In determining whether to grant an injunction under subsection (1), the
Court shall have regard to the following matters—
(a)
whether a substantial proportion of the content accessible at or
via each specified online location infringes copyright,
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(b)
the extent to which the operator of each specified online
location has taken reasonable steps to prevent copyright
infringement content being accessed at or via that online
location or taken reasonable steps to remove copyright
infringing content from that online location (or both),
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(c)
whether the service provider has itself taken reasonable steps to
prevent access to the specified online location,
(d)
any issues of national security raised by the Secretary of State,
(e)
the extent to which the copyright owner has made reasonable
efforts to facilitate legal access to content,
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(f)
the importance of preserving human rights, including freedom
of expression, and the right to property, and
(g)
any other matters which appear to the Court to be relevant.
(3)
An application for an injunction under subsection (1) shall be made on
notice to the service provider and to the operator of each specified
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online location in relation to which an injunction is sought and to the
Secretary of State.
(4)
Where—
(a)
the Court grants an injunction under subsection (1) upon the
application of an owner of copyright whose copyright is
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infringed by the content accessible at or via each specified
online location in the injunction, and
(b)
the owner of copyright before making the application made a
written request to the service provider giving it a reasonable
period of time to take measures to prevent its service being used
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to access the specified online location in the injunction, and no
steps were taken,

the Court shall order the service provider to pay the copyright owner’s
costs of the application unless there were exceptional circumstances
justifying the service provider’s failure to prevent access despite
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notification by the copyright owner.
(5)
In this section—
“copyright owner” includes a licensee with an exclusive licence
within the meaning of section 92 of this Act,
“infringing content” means content which is produced or made
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available in infringement of copyright,
“online location” means a location on the internet, a mobile data
network or other data network at or via which copyright
infringing content is accessible,
“operator” means a person or persons in joint or sole control of the
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decisions to make content accessible at or via an online location,
and
“service provider” has the meaning given to it by section 97A(3) of
this Act.
(6)
Subsections (1) to (5) shall come into force on such day as the Secretary
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of State may by order appoint not less than 3 months and not more than
12 months after subsections (1) to (5) have been notified to the
Commission of the European Communities (“the Commission”) in
accordance with the obligations of notification imposed by Directive
98/34/EC.
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(7)
If any comments are received from Member States of the European
Union or the Commission after subsections (1) to (5) have been so
notified and the Secretary of State reasonably considers amendments
are necessary to give effect to such comments, he may make the
necessary regulations within the period referred to in subsection (6)(a),
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to amend subsections (1) to (5).”

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Powers in relation to internet domain registries
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Powers in relation to internet domain registries
After section 124N of the Communications Act 2003 insert—
“Powers in relation to internet domain registries
124O
Notification of failure in relation to internet domain registry
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(1)
This section applies where the Secretary of State—
(a)
is satisfied that a serious relevant failure in relation to a
qualifying internet domain registry is taking place or has taken
place, and
(b)
wishes to exercise the powers under section 124P or 124R.
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(2)
The Secretary of State must notify the internet domain registry,
specifying the failure and a period during which the registry has the
opportunity to make representations to the Secretary of State.
(3)
There is a relevant failure in relation to a qualifying internet domain
registry if—
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(a)
the registry, or any of its registrars or end-users, engages in
prescribed practices that are unfair or involve the misuse of
internet domain names, or
(b)
the arrangements made by the registry for dealing with
complaints in connection with internet domain names do not
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comply with prescribed requirements.
(4)
A relevant failure is serious, for the purposes of this section, if it has
adversely affected or is likely adversely to affect—
(a)
the reputation or availability of electronic communications
networks or electronic communications services provided in
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the United Kingdom or a part of the United Kingdom, or
(b)
the interests of consumers or members of the public in the
United Kingdom or a part of the United Kingdom.
(5)
In subsection (3) “prescribed” means prescribed by regulations made
by the Secretary of State.
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(6)
Before making regulations under subsection (3) the Secretary of State
must consult such persons as the Secretary of State considers
appropriate.
(7)
In this section and sections 124P to 124R—
“end-user”, in relation to a qualifying internet domain registry,
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means a person who has been or wants to be allocated an
internet domain name that is or would be included in the
register maintained by the registry;
“qualifying internet domain registry” means a relevant body
that—
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(a)
maintains a relevant register of internet domain names,
and
(b)
operates a computer program or server that forms part
of the system that enables the names included in the

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register to be used to access internet protocol addresses
or other information by means of the internet;
“registrar”, in relation to a qualifying internet domain registry,
means a person authorised by the registry to act on behalf of
end-users in connection with the registration of internet domain
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names;
“relevant body” means a company formed and registered under
the Companies Act 2006 or a limited liability partnership;
“relevant register of internet domain names” means a register of—
(a)
the names of second level internet domains that form
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part of the same UK-related top level internet domain,
or
(b)
the names of third level internet domains that form part
of the same UK-related second level internet domain;
“second level internet domain” means an internet domain
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indicated by the last two elements of an internet domain name;
“third level internet domain” means an internet domain indicated
by the last three elements of an internet domain name;
“top level internet domain” means an internet domain indicated
by the last element of an internet domain name.
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(8)
An internet domain is “UK-related” if, in the opinion of the Secretary of
State, the last element of its name is likely to cause users of the internet,
or a class of such users, to believe that the domain and its sub-domains
are connected with the United Kingdom or a part of the United
Kingdom.”
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Appointment of manager of internet domain registry
(1)
After section 124O of the Communications Act 2003 insert—
“124P
Appointment of manager of internet domain registry
(1)
This section applies where—
(a)
the Secretary of State has given a notification under section
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124O to a qualifying internet domain registry specifying a
failure,
(b)
the period allowed for making representations has expired, and
(c)
the Secretary of State is satisfied that the registry has not taken
the steps that the Secretary of State considers appropriate for
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remedying the failure.
(2)
The Secretary of State may by order appoint a manager in respect of the
property and affairs of the internet domain registry for the purpose of
securing that the registry takes the steps described in subsection (1)(c).
(3)
The person appointed may be anyone whom the Secretary of State
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thinks appropriate.
(4)
The appointment of the manager does not affect—
(a)
a right of a person to appoint a receiver of the registry’s
property, or
(b)
the rights of a receiver appointed by a person other than the
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Secretary of State.

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(5)
The Secretary of State must—
(a)
keep the order under review, and
(b)
if appropriate, discharge all or part of the order.
(6)
The Secretary of State must discharge the order on the appointment of
a person to act as administrative receiver, administrator, provisional
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liquidator or liquidator of the registry.
(7)
The Secretary of State must discharge the order before the end of the
period of 2 years beginning with the day on which it was made (but this
does not prevent the Secretary of State from making a further order in
the same or similar terms).
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(8)
When discharging an order under this section, the Secretary of State
may make savings and transitional provision.
(9)
The Secretary of State must send a copy of an order made under this
section to the registry as soon as practicable after it is made.
(10)
In subsection (4), “receiver” includes a manager (other than a manager
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appointed by the registry) and a person who is appointed as both
receiver and manager.
(11)
In subsection (6)—
“administrative receiver” means an administrative receiver within
the meaning of section 251 of the Insolvency Act 1986 or Article
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5(1) of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/
2405 (N.I. 19));
“administrator” means a person appointed to manage the affairs,
business and property of the registry under Schedule B1 to that
Act or Schedule B1 to that Order.
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124Q
Functions of manager etc
(1)
An order under section 124P may make provision about the functions
to be exercised by, and the powers of, the manager.
(2)
The order may, in particular—
(a)
provide for the manager to have such of the functions of the
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registry’s directors as are specified in the order (including
functions exercisable only by a particular director or class of
directors), and
(b)
provide for one or more of the registry’s directors to be
prevented from exercising any of those functions.
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(3)
The order may make provision about the remuneration of the manager,
including in particular—
(a)
provision for the amount of the remuneration to be determined
by the Secretary of State, and
(b)
provision for the remuneration to be payable from the property
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of the registry.
(4)
In carrying out the functions conferred by the order, the manager acts
as the registry’s agent.
(5)
The Secretary of State may apply to the court for directions in relation
to any matter arising in connection with the functions or powers of the
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manager (and the costs of the application are to be paid by the registry).

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(6)
On an application under subsection (5) the court may give such
directions or make such orders as it thinks fit.
(7)
In this section “the court” means—
(a)
in England and Wales, the High Court or a county court,
(b)
in Scotland, the Court of Session or the sheriff, and
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(c)
in Northern Ireland, the High Court.
(8)
Where the registry is a limited liability partnership, this section applies
as if references to a director of the registry were references to a member
of the limited liability partnership.”
(2)
In section 192(1)(d) of that Act (appeals against decisions of the Secretary of
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State), after sub-paragraph (ii) insert—
“(iia)
an order under section 124P;”.
(3)
In section 402(1) of that Act (powers of the Secretary of State to make orders
and regulations), after “conferred by” insert “section 124P and”.
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Application to court to alter constitution of internet domain registry
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After section 124Q of the Communications Act 2003 insert—
“124R
Application to court to alter constitution of internet domain registry
(1)
This section applies where—
(a)
the Secretary of State has given a notification under section
124O to a qualifying internet domain registry specifying a
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failure,
(b)
the period allowed for making representations has expired, and
(c)
the Secretary of State is satisfied that the registry has not taken
the steps that the Secretary of State considers appropriate for
remedying the failure.
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(2)
The Secretary of State may apply to the court (as defined in section
124Q) for an order under this section.
(3)
The court may make an order—
(a)
making alterations of the registry’s constitution, and
(b)
requiring the registry not to make any alterations, or any
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specified alterations, of its constitution without the leave of the
court.
(4)
An order under this section may contain only such provision as the
court considers appropriate for securing that the registry remedies the
failure specified in the notification under section 124O.
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(5)
In this section—
“constitution” means, in the case of a company, the articles of
association and, in the case of a limited liability partnership, the
limited liability partnership agreement;
“limited liability partnership agreement” means the agreement or
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agreements, whether express or implied, between the members
of a limited liability partnership, and between the partnership
and the members of the partnership, determining—
(a)
the mutual rights and duties of the members, and