A couple of people have suggested that we should send out these letters only if people are doing this for financial gain, but I cannot accept that argument at all. That is almost like arguing that stealing is wrong only if it is being done for financial gain, and I do not think that anyone would seriously maintain that that is the case. It would depend on how one defined financial gain, but I believe that it would be wrong to restrict this
measure to cases in which there was clear commercial gain. People who take what others have paid for without paying for it are doing something that is already illegal; that is clear in the law at the moment. To say that we should not send a letter to such people is quite wrong.
Mr. Watson: The amendment does not seek to do that. It seeks to oblige people to say whether they think the infringement is for financial gain or not. That would enable the industry to gather its own evidence on how deep the piracy runs and how much of it involves people sharing not for financial gain. This is important because, if the Bill is going to go through-and there is an insistence that it does-there will be an emerging debate in the industry about incorporating a fair use clause following copyright reform. I hope that the Government will accept that this is about helping the industry to get its figures right. It is not about targeting a particular group; it is about collecting evidence.
Mr. Timms: I am grateful to my hon. Friend for that reassurance, but I do not think that we need to amend the Bill to enable the industry to collect data in that way. He is perfectly right about the need for us to reform copyright. The Minister for Higher Education and Intellectual Property, who was with me on the Front Bench yesterday, intervened to point out that the Government are developing a copyright strategy, which is certainly needed in the light of online technological developments. I say to my hon. Friend the Member for West Bromwich, East, however, that we ought not to give the impression that it is okay for someone to take something that they should have paid for without paying for it, so long as they are not doing it for commercial gain.
Mr. Randall: It really is kind of the Minister to give way. I support him in what he says about copyright. I have a real problem, however, as a result of a constituency case in which someone was accused of illegal downloading. We found out that the IP number-I have to say that I am a member of the Luddite society on this issue-was not unique, so the provider gave an IP number and the person who thought that copyright had been infringed wrote to a person who had nothing to do with the infringement. What worries me is that, because the IP number is not unique to one particular person, there is a chance of innocent people being accused.
Mr. Timms: There are some particular issues about mobile networks, and we could get into discussion about how to address them. When it comes to ordinary internet access, the case is quite straightforward. I remind the House that at this stage we are talking only about a letter being sent; that is all.
John Hemming: I return to the point that it does not matter whether the IP is version 4 or version 6. How can we get the IP address, as the copyright owner does not have control over the server from which the data are being accessed?
Mr. Timms: The copyright owner can obtain the information by observing the fact that somebody has downloaded material that is their copyright, which can be done by using the same P2P methods that the downloaders use. From that information, it is clear which service provider has provided that connection. The copyright owner gives the information to the internet service provider, but he does not know who is breaching the copyright; he does not know anything other than a technical address. The internet service provider, however, knows who is responsible for the account, and it writes to the individual to inform them that a breach has occurred.
Mr. Todd: I thank my right hon. Friend. I wanted to draw his attention to his repeated use of the phrase that an infringement of copyright "had occurred". In fact, what the Bill says is somewhat different-that what is required is that the copyright owner produce information about an "apparent" breach of copyright. I am puzzled about the test that must be applied to demonstrate that a genuine breach has actually occurred as opposed to an apparent perception of the same on the part of the copyright owner. I spent 20 years in the media industry, so I know that demonstrating precise copyright ownership is not by any means as straightforward as might be assumed.
Mr. Timms: I think that the copyright owner will be clear about what copyright they own. I say again to my hon. Friend, however, that in this part of the Bill, we are talking only about letters being sent. Clause 4 is about the circumstances under which a letter will be sent and to whom. We will come on later to the possibility of technical measures, which I hope we will never need to invoke because I hope that the letters alone will be sufficient to reduce the incidence of the problem.
My hon. Friend the Member for Sittingbourne and Sheppey said that people can simply change their e-mail address, but it is actually much harder and more difficult, although not impossible, to change one's internet access. We want to create an environment in which it is clear when people are doing things that they should not be doing and an environment in which they are discouraged from doing them. That is what this part of the Bill will provide.
My hon. Friend the Member for Great Grimsby (Mr. Mitchell) asked about technical measures which are not in this part of the Bill. I can, however, reassure him that no one will be subject to technical measures until they have received a number of letters, or notifications, and had an opportunity to appeal. We may come to those measures later.
My right hon. Friend suggested that I was making the case that the clause was a sledgehammer to crack a nut. That is not true. I understand the magnitude of the problem. I am making the case that
the clause is a steamroller, crushing any democratic accountability that the House may claim to have. Given that we have so little time, however, I beg to ask leave to withdraw the amendment.
(4) However, a committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under subsection (2) and before the draft order is approved by that House under subsection (3), recommend under this subsection that no further proceedings be taken in relation to the draft order.
(5) Where a recommendation is made by a committee of either House under subsection (4) in relation to a draft order, no proceedings may be taken in relation to the draft order in that House under subsection (3) unless the recommendation is, in the same Session, rejected by resolution of that House.
(6) If, after the expiry of the 60-day period, the Secretary of State wishes to make an order consisting of a version of the draft order with material changes, the Secretary of State must lay before Parliament-
(7) The Secretary of State may after laying a revised draft order and statement under subsection (6) make an order in the terms of the revised draft if it is approved by a resolution of each House of Parliament.
(8) However, a committee of either House charged with reporting on the revised draft order may, at any time after the revised draft order is laid under subsection (6) and before it is
approved by that House under subsection (7), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.
(9) Where a recommendation is made by a committee of either House under subsection (8) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House under subsection (7) unless the recommendation is, in the same Session, rejected by resolution of that House.
Mr. Watson: Clause 4 deals with the obligation to notify subscribers of a copyright infringement. The Minister himself has described it as the so-called sending letters clause. I am deeply upset that the hon. Member for Perth and North Perthshire (Pete Wishart) is not present, as he spent considerable time lecturing the House on the fact that it was only about sending letters. To him it was simply about a letter-writing campaign to educate the nation on what its children might or might not be doing in regard to copyright infringement.
"copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures."
Amendment 38-peculiarly, given that this is the Digital Economy Bill-is an analogue amendment. The Bill allows notifications to be sent either by post or by e-mail, but the amendment seeks to remove the capacity for them to be sent by e-mail. This is simply about the digital age. Many "digital natives" have huge amounts of dormant e-mail accounts. Indeed, if a Member of Parliament were suspected of copyright infringement in the next six weeks and had given his or her parliament.uk e-mail address to the ISP, it is highly likely that he or she would miss the e-mail. Members of the Communication Workers Union may also be grateful for the fact that Royal Mail will have more post to deal with.
Jeremy Corbyn: How does my hon. Friend expect a name and address to be discovered so that a letter can be sent, given that all previous correspondence may have taken place by means of e-mail and fictitious names may have been used?
Mr. Todd: Is my hon. Friend sure that a postal delivery will suffice? Many people may have chosen to form a contract with an ISP at some stage before moving, and may not have seen any particular reason to notify the ISP of a change of address.
Mr. Watson: My hon. Friend has identified a further flaw in the clause that I had not. The importance of the postal address is that if clause 4(8)(d) goes through and the number of notifications is taken into account when it comes to technical measures, there is an incentive for people to appeal at the first notification, even if they know that it is their next-door neighbour who has stolen their bandwidth and downloaded something that infringes copyright. They may have put a security measure on, but this could still be taken into account if a further copyright infringement takes place, so my proposal seeks to provide clarity on that.
Amendment 26 is about the powers of the Secretary of State. The Bill, as drafted, provides for the Secretary of State to decide to take technical measures at any point. If a Secretary of State were less charitable than the current incumbent-let us suppose that a successor was a lickspittle to a media oligarch who just gave instructions from his tax haven abroad-people could be cut off as a result of a single allegation of infringement by some hokey rights holder. The amendment seeks to remove or curtail the powers of the Secretary of State.
Mr. Todd: I just wish to strengthen that point. Does my hon. Friend share my surprise at the confidence of our Front-Bench spokesman in the ability of a copyrighter to demonstrate copyright, which is an area of extraordinary legal complexity where an assertion that someone has had their copyright infringed may have no basis whatsoever in fact?
Mr. Watson: As we see now-there are other amendments ahead of us-suspect practices take place whereby people make dubious allegations of copyright infringement to try to increase their revenue and frighten ordinary citizens. Thus I think my hon. Friend is right.
Stephen Pound: I am sure I cannot be the only Member of the House who feels considerable distaste at this list of sanctions, which can range from reducing someone's bandwidth to imposing a daily download limit. What worries me is that although my hon. Friend is addressing that issue, I have not yet heard an answer to the question relating to musicians, authors, poets, playwrights and film makers. What can we give them to protect their intellectual copyright and allow them to flourish, while rightly maintaining a neo-libertarian stance and trying to avoid a situation in which people get letters and go before second-tier tribunals?
I understand the point. I am sorry that my hon. Friend was not here on Second Reading, because some suggestions were made as to how we could do that. I would like there to be statutory licensing for online music. That is how we destroyed pirate radio in the 1960s; it took a Labour Government to oppose it for nine years, then we moved and that breathed life into the commercial radio sector. If I carry on talking like this I will be drawn away from the purpose of my amendments. I hope my hon. Friend knows that we both want the music industry to thrive. However, because this Bill has not been given adequate scrutiny we have
not been able to improve it. The amendments that I have tabled are an expression of my legitimate concern that music lovers and internet users alike will not get justice if an allegation is made against them. This is not an attack on the music industry, and I hope that the tenor of his argument is along those lines; this is about trying to obtain a necessary settlement for people who have been accused of copyright infringement.
Mr. Don Foster: We are often concerned about why members of the public hold us in such low regard, but anybody observing our proceedings tonight will not be convinced that this House is doing its job of holding the Government to account. We have spent more than an hour discussing just one clause of a 50-clause Bill in the knowledge that we have less than an hour left to cover all the remaining clauses-that is hardly evidence that we are doing our job properly. It is frankly totally disgraceful that a Bill of this complexity has been given so little time for debate in this House.
As I said earlier, it would have been possible to have the Second Reading much earlier-nearly three weeks ago-and to have had full deliberations in Committee for a three-week period before bringing the Bill back for the final stages. That is why so many of us are in such a difficult position. The hon. Member for West Bromwich, East (Mr. Watson) has already moved a number of really important probing amendments about various aspects of the legislation. We already know that this evening there will be no time to discuss, for instance, orphan works and the very legitimate concerns raised by photographers. That means that we will all be forced, I suspect, to vote against new clause 43.
There will be no opportunity to discuss why the Government are going to announce later this evening that they are backing down on one of their cherished projects, which is to have independently funded news consortiums, or to discuss in detail the other very important amendments tabled by the hon. Member for West Bromwich, East, me and other Members.
I speak to amendments 16 and 17 in particular. On Second Reading, I acknowledged that there was a serious problem in terms of providing support to our creative industries, which are losing hundreds of millions of pounds because of illegal activity on the internet. Action needs to be taken. That is why we have been willing to consider supporting the string of clauses-4 to 17-on illegal peer-to-peer file sharing.
We pointed out then that three additional conditions need to be put in place. The first was that we needed to have the super-affirmative resolution to ensure that the next Parliament could have proper scrutiny of any proposals to introduce technical measures, which we believe should be introduced only as a last resort based on clear evidence of the need for them. The super-affirmative resolution is what is proposed in amendments 16 and 17.
We also said that we needed to resolve the serious problems faced by our universities, schools and wi-fi cafés to ensure that they will not fall foul of this legislation, given that they often have one IP address and a very large number of users. That is the case, for example, in this place. Many of us use the same IP address.