Digital Economy Bill [HL]

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House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]

Digital Economy Bill [HL]
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(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.
(4)
The assessment and steps that the Secretary of State may direct
5
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
10
relation to a particular type of internet access service; and
(c)
steps to prepare a proposed technical obligations code.
(5)
Internet service providers must give OFCOM any assistance that
OFCOM reasonably require for the purposes of complying with any
direction under this section.
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(6)
The Secretary of State must lay before Parliament any direction under
this section.”
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Obligations to limit internet access
After section 124G of the Communications Act 2003 insert—
“124H
Obligations to limit internet access
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(1)
The Secretary of State may at any time by order impose a technical
obligation on internet service providers if the Secretary of State
considers it appropriate in view of—
(a)
an assessment carried out or steps taken by OFCOM under
section 124G; or
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(b)
any other consideration.
(2)
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.
(3)
The order may also specify—
(a)
the criteria for taking the technical measure concerned against a
30
subscriber;
(b)
the steps to be taken as part of the measure and when they are
to be taken.”
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Code by OFCOM about obligations to limit internet access
After section 124H of the Communications Act 2003 insert—
35
“124I
Code by OFCOM about obligations to limit internet access
(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.
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(2)
The code may be made separately from, or in combination with, any
initial obligations code made under section 124D.

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(3)
A code under this section may—
(a)
do any of the things mentioned in section 124C(3) to (5) or
section 124D(4)(a)to (f)); and
(b)
make other provision for the purpose of regulating the technical
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
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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
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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 subsection (2));
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(b)
that it makes any provision about contributions towards
meeting costs that is required to be included by an order under
section 124L;
(c)
that it makes any other provision that the Secretary of State
requires it to make;
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(d)
that the provisions of the code are objectively justifiable in
relation to the matters to which it relates;
(e)
that those provisions are not such as to discriminate unduly
against particular persons or against a particular description of
persons;
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(f)
that those provisions are proportionate to what they are
intended to achieve; and
(g)
that, in relation to what those provisions are intended to
achieve, they are transparent.
(2)
The requirements concerning enforcement and related matters are—
40
(a)
that OFCOM or another person has, under the code, the
functions of administering and enforcing it, including the
function of resolving copyright infringement disputes;
(b)
that any such other person is sufficiently independent of
internet service providers and copyright owners;
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(c)
that there is a person who, under the code, has the function of
determining subscriber appeals;
(d)
that that person is sufficiently independent of internet service
providers, copyright owners and OFCOM;
(e)
that there are adequate arrangements under the code for the
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costs of the carrying out by a person mentioned in paragraph (a)
or (c) of functions in relation to the code to be met by internet
service providers and copyright owners; and
(f)
that provision is made, in accordance with subsection (3), for
the appeal to the First-tier Tribunal of determinations of
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subscriber appeals.
(3)
The provision mentioned in subsection (2)(f) is provision—
(a)
enabling a determination of a subscriber appeal to be appealed
to the First-tier Tribunal, including on grounds that it was based
on an error of fact, wrong in law or unreasonable;
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(b)
giving the First-tier Tribunal power, in relation to an appeal to
it, to—
(i)
withdraw a technical measure;
(ii)
confirm a technical measure;
(iii)
take any steps that a person administering or enforcing
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the code could take in relation to the act or omission
giving rise to the technical measure;
(iv)
remit the decision whether to confirm the technical
measure, or any matter relating to that decision, to a
person mentioned in subsection (2)(c);
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(v)
award costs;
(c)
in relation to recovery of costs awarded by the Tribunal.
(4)
The provision mentioned in subsection (2) may also (unless the
Secretary of State requires otherwise) include, in particular—
(a)
provision for the payment, to a person specified in the code, of
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a penalty not exceeding the maximum penalty for the time
being specified in section 124K(2);
(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
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copyright infringement provisions;
(c)
provision for the taking of a technical measure to be postponed
until a subscriber appeal to a person mentioned in subsection
(2)(c) or an appeal to the First-tier Tribunal has been
determined.
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(5)
In this section—
“copyright infringement dispute” means a dispute that—
(a)
is between one or more copyright owners, internet
service providers or subscribers; and
(b)
relates to an act or omission in relation to a technical
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obligation or the technical obligations code;
“subscriber appeal” means an appeal by a subscriber against—
(a)
the proposed taking of a technical measure against a
subscriber; or
(b)
the taking of a technical measure against a subscriber.”
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Enforcement of obligations
After section 124J of the Communications Act 2003 insert—
“124K
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
5
under section 124G(5), as they apply in relation to a contravention of a
condition set out under section 45.
(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—
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(a)
appropriate; and
(b)
proportionate to the contravention in respect of which it is
imposed.
(3)
In making that determination OFCOM must have regard to—
(a)
any representations made to them by the internet service
15
provider;
(b)
any steps taken by the provider towards complying 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 for remedying the
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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
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(4) unless a draft of the order has been laid before Parliament and
approved by a resolution of each House.”
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Sharing of costs
After section 124K of the Communications Act 2003 insert—
“124L
Sharing of costs
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(1)
The Secretary of State may by order specify provision that must be
included in an initial obligations code or a technical obligations code
about payment of contributions towards costs incurred under the
copyright infringement provisions.
(2)
Provision specified under subsection (1) may relate to, in particular—
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(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.
(3)
Provision specified under subsection (1) may include, in particular—
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(a)
provision about costs incurred before the provision is included
in an initial obligations code or a technical obligations code;

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(b)
provision for payment in advance of expected costs (and for
reimbursement of overpayments where the costs incurred are
less than expected);
(c)
provision about how costs, expected costs or contributions must
be calculated;
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(d)
other provision about when and how contributions must be
paid.”
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Interpretation and consequential provision
(1)
After section 124L of the Communications Act 2003 insert—
“124M
Interpretation
10
In sections 124A to 124L and this section—
“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
15
124B(2);
“copyright infringement provisions” means sections 124A to 124L
and this section;
“copyright infringement report” has the meaning given in section
124A(3);
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“copyright owner” means—
(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
25
person’s behalf;
“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);
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“initial obligations code” has the meaning given in section
124A(2);
“internet access service” means an electronic communications
service that—
(a)
is provided to a subscriber;
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(b)
consists entirely or mainly of the provision of access to
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
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internet access service;
“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
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person and the provider of the service; and
(b)
does not receive it as a communications provider;
“technical measure” has the meaning given in section 124G(3);

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“technical obligation” has the meaning given in section 124G(2);
“technical obligations code” means a code for the time being 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—
5
“(ia)
preparing a report under section 124F;
(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—
10
“9A
A decision relating to any of sections 124A to 124M or to anything
done under them.”
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Power to amend copyright provisions
In Part 7 of the Copyright, Designs and Patents Act 1988 (miscellaneous and
general) after section 302 insert—
15
“Prevention or reduction of online infringement of copyright
302A
Power to amend Part 1 and this Part
(1)
The Secretary of State may by order amend Part 1 or this Part for the
purpose of preventing or reducing the infringement of copyright by
means of the internet, if it appears to the Secretary of State appropriate
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to do so having regard to technological developments that have
occurred or are likely to occur.
(2)
The following provisions apply to the power conferred by this section.
(3)
Subsections (4) to (6) do not limit that power.
(4)
The power may be exercised so as to make new provision or to amend
25
or repeal provision (whenever made).
(5)
The power may be exercised so as to—
(a)
confer a power or right or impose a duty on any person;
(b)
modify or remove a power, right or duty of any person;
(c)
require a person to pay fees.
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(6)
The power includes power to—
(a)
make different provision for different cases;
(b)
make transitional or saving provision;
(c)
make any consequential amendment, repeal or revocation of
provision (whenever made) contained in or made under an Act.
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(7)
The power does not include power to create or modify a criminal
offence.
(8)
An order under this section must be made by statutory instrument.
(9)
Before making any order under this section the Secretary of State must
consult such persons who the Secretary of State thinks likely to be
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affected by the order, or who represent any of those persons, as the
Secretary of State thinks fit.
(10)
A statutory instrument containing an order under this section may not
be made unless a draft of the instrument has been laid before and
approved by a resolution of each House of Parliament.”
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Powers in relation to internet domain registries
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Powers in relation to internet domain registries
After section 124M of the Communications Act 2003 insert—
“Powers in relation to internet domain registries
124N
Notification of failure in relation to internet domain registry
10
(1)
This section applies where the Secretary of State—
(a)
is satisfied that a serious relevant failure in relation to an
internet domain registry is taking place or has taken place, and
(b)
wishes to exercise the powers under section 124O or 124Q.
(2)
The Secretary of State must notify the internet domain registry,
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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 an internet domain registry if—
(a)
the registry, or any of its registrars or end-users, engages in
prescribed practices that are unfair or involve the misuse of
20
internet domain names, or
(b)
the arrangements made by the registry for dealing with
complaints in connection with internet domain names do not
comply with prescribed requirements.
(4)
A relevant failure is serious, for the purposes of this section, if it has
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adversely affected or is likely adversely to affect—
(a)
the reputation or availability of electronic communications
networks or electronic communications services provided in
the United Kingdom or a part of the United Kingdom, or
(b)
the interests of consumers or members of the public in the
30
United Kingdom or a part of the United Kingdom.
(5)
In this section and sections 124O to 124Q—
“end-user”, in relation to an internet domain registry, means a
person who has been or wants to be allocated an internet
domain name that is or would be included in the register
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maintained by the registry;
“internet domain” means an internet domain indicated by the last
element of an internet domain name or by that element together
with one or more of the preceding elements of the name;
“internet domain registry” means a relevant body that—
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(a)
maintains a register of all of the internet domain names
that belong to a particular internet domain, and