|
| |
|
(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 |
| |
| |
(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. |
| 15 |
(6) | The Secretary of State must lay before Parliament any direction under |
| |
| |
11 | Obligations to limit internet access |
| |
After section 124G of the Communications Act 2003 insert— |
| |
“124H | Obligations to limit internet access |
| 20 |
(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 |
| |
| 25 |
(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 |
| |
(b) | the steps to be taken as part of the measure and when they are |
| |
| |
12 | 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 |
| |
| 40 |
(2) | The code may be made separately from, or in combination with, any |
| |
initial obligations code made 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(4)(a)to (f)); and |
| |
(b) | make other provision for the purpose of regulating the technical |
| |
| 5 |
(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 |
| 10 |
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 |
| 15 |
| |
(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 |
| 20 |
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)); |
| 25 |
(b) | that it makes any provision about contributions towards |
| |
meeting costs that is required to be included by an order under |
| |
| |
(c) | that it makes any other provision that the Secretary of State |
| |
| 30 |
(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 |
| |
| 35 |
(f) | that those provisions are proportionate to what they are |
| |
| |
(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; |
| 45 |
|
| |
|
| |
|
(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 |
| 5 |
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 |
| 10 |
| |
(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; |
| 15 |
(b) | giving the First-tier Tribunal power, in relation to an appeal to |
| |
| |
(i) | withdraw a technical measure; |
| |
(ii) | confirm a technical measure; |
| |
(iii) | take any steps that a person administering or enforcing |
| 20 |
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); |
| 25 |
| |
(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 |
| 30 |
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 |
| 35 |
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 |
| |
| 40 |
| |
“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 |
| 45 |
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 |
| |
| |
(b) | the taking of a technical measure against a subscriber.” |
| 50 |
|
| |
|
| |
|
14 | 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 |
| |
| 10 |
| |
(b) | proportionate to the contravention in respect of which it is |
| |
| |
(3) | In making that determination OFCOM must have regard to— |
| |
(a) | any representations made to them by the internet service |
| 15 |
| |
(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 |
| 20 |
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 |
| 25 |
(4) unless a draft of the order has been laid before Parliament and |
| |
approved by a resolution of each House.” |
| |
| |
After section 124K of the Communications Act 2003 insert— |
| |
| 30 |
(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— |
| 35 |
(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— |
| 40 |
(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 |
| |
| |
(c) | provision about how costs, expected costs or contributions must |
| |
| 5 |
(d) | other provision about when and how contributions must be |
| |
| |
16 | Interpretation and consequential provision |
| |
(1) | After section 124L of the Communications Act 2003 insert— |
| |
| 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 |
| |
“copyright infringement provisions” means sections 124A to 124L |
| |
| |
“copyright infringement report” has the meaning given in section |
| |
| 20 |
| |
(a) | a copyright owner within the meaning of Part 1 of the |
| |
Copyright, Designs and Patents Act 1988 (see section |
| |
| |
(b) | someone authorised by that person to act on the |
| 25 |
| |
“copyright work” has the same meaning as in Part 1 of the |
| |
Copyright, Designs and Patents Act 1988 (see section 1(2) of that |
| |
| |
“initial obligations” has the meaning given in section 124C(1); |
| 30 |
“initial obligations code” has the meaning given in section |
| |
| |
“internet access service” means an electronic communications |
| |
| |
(a) | is provided to a subscriber; |
| 35 |
(b) | consists entirely or mainly of the provision of access to |
| |
| |
(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 |
| 40 |
| |
“IP address” means an internet protocol address; |
| |
“subscriber”, in relation to an internet access service, means a |
| |
| |
(a) | receives the service under an agreement between the |
| 45 |
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); |
| |
|
| |
|
| |
|
“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 |
| |
| |
(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 |
| |
| |
17 | 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 |
| 20 |
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. |
| 30 |
(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. |
| 35 |
(7) | The power does not include power to create or modify a criminal |
| |
| |
(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 |
| 40 |
|
| |
|
| |
|
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.” |
| 5 |
Powers in relation to internet domain registries |
| |
18 | 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, |
| 15 |
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 |
| 25 |
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 |
| 35 |
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— |
| 40 |
(a) | maintains a register of all of the internet domain names |
| |
that belong to a particular internet domain, and |
| |
|
| |
|