Digital Economy Bill [HL]

House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]

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Online infringement of copyright
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Obligation to notify subscribers of reported infringements
After section 124 of the Communications Act 2003 insert—
“Online infringement of copyright: obligations of internet service providers
124A
Obligation to notify subscribers of copyright infringement reports
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(1)
This section applies if it appears to a copyright owner that—
(a)
a subscriber to an internet access service has infringed the
owner’s copyright by means of the service; or
(b)
a subscriber to an internet access service has allowed another
person to use the service, and that other person has infringed
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the owner’s copyright by means of the service.
(2)
The owner may make a copyright infringement report to the internet
service provider who provided the internet access service if a code in
force under section 124C or 124D (an “initial obligations code”) allows
the owner to do so.
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(3)
A “copyright infringement report” is a report that—
(a)
states that there appears to have been an infringement of the
owner’s copyright;
(b)
includes a description of the apparent infringement;
(c)
includes evidence of the apparent infringement that shows the
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subscriber’s IP address and the time at which the evidence was
gathered; and
(d)
complies with any other requirement of the initial obligations
code.
(4)
An internet service provider who receives a copyright infringement
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report must notify the subscriber of the report if the initial obligations
code requires the provider to do so.
(5)
A notification under subsection (4) must include—
(a)
a statement that it is sent under this section in response to a
copyright infringement report made by a copyright owner;
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(b)
a description of the apparent infringement;
(c)
evidence of the apparent infringement;
(d)
information about copyright and its purpose;
(e)
advice about how to obtain lawful access to copyright works;
(f)
advice about the protection of electronic communications
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networks that use wireless telegraphy; and
(g)
anything else that the initial obligations code requires it to
include.
(6)
The things that may be required under subsection (5)(g), whether in
general or in a particular case, include in particular statements that—
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(a)
information about the apparent infringement may be kept by
the internet service provider;

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(b)
the copyright owner may require the provider to disclose which
copyright infringement reports made by the owner to the
provider relate to the subscriber;
(c)
following such a disclosure, the copyright owner may apply to
a court to learn the subscriber’s identity and may bring
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proceedings against the subscriber for copyright infringement;
(d)
the number and nature of copyright infringement reports
relating to the subscriber may be taken into account for the
purposes of any technical measures.
(7)
In this section “notify”, in relation to a subscriber, means send a
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notification to the electronic or postal address held by the internet
service provider for the subscriber (and sections 394 to 396 do not
apply).”
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Obligation to provide infringement lists to copyright owners
After section 124A of the Communications Act 2003 insert—
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“124B
Obligation to provide copyright infringement lists to copyright
owners
(1)
An internet service provider must provide a copyright owner with a
copyright infringement list for a period if—
(a)
the owner requests the list for that period; and
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(b)
an initial obligations code requires the internet service provider
to provide it.
(2)
A “copyright infringement list” is a list that—
(a)
sets out, in relation to each relevant subscriber, which of the
copyright infringement reports made by the owner to the
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provider relate to the subscriber, but
(b)
does not enable any subscriber to be identified.
(3)
A subscriber is a “relevant subscriber” in relation to a copyright owner
if—
(a)
the owner has made one or more copyright infringement
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reports in relation to the subscriber; and
(b)
the number of the reports has reached the threshold (if any) set
in the initial obligations code.”
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Approval of code about the initial obligations
After section 124B of the Communications Act 2003 insert—
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“124C
Approval of code about the initial obligations
(1)
The obligations of internet service providers under sections 124A and
124B are the “initial obligations”.
(2)
If it appears to OFCOM—
(a)
that a code has been made by any person for the purpose of
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regulating the initial obligations; and
(b)
that it would be appropriate for them to approve the code for
that purpose,

they may approve it, with effect from the date given in the approval.

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(3)
The provision that may be contained in a code and approved under this
section includes provision that—
(a)
specifies conditions that must be met for rights and obligations
under the copyright infringement provisions or the code to
apply in a particular case;
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(b)
requires copyright owners or internet service providers to
provide any information or assistance that is reasonably
required to determine whether a condition under paragraph (a)
is met.
(4)
The provision mentioned in subsection (3)(a) may, in particular, specify
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that a right or obligation does not apply in relation to a copyright owner
unless the owner has made arrangements with an internet service
provider regarding—
(a)
the number of copyright infringement reports that the owner
may make to the provider within a particular period; and
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(b)
payment in advance of a contribution towards meeting costs
incurred by the provider.
(5)
The provision mentioned in subsection (3)(a) may also, in particular,
provide that—
(a)
except as provided by the code, rights and obligations do not
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apply in relation to an internet service provider unless the
number of copyright infringement reports the provider receives
within a particular period reaches a threshold set out in the
code;
(b)
once the threshold is reached, rights or obligations apply in
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relation to a time before it was reached.
(6)
OFCOM must not approve a code under this section unless satisfied
that it meets the criteria set out in section 124E.
(7)
Not more than one approved code may have effect at a time.
(8)
OFCOM must keep an approved code under review.
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(9)
OFCOM may, at any time, for the purpose mentioned in subsection
(2)—
(a)
approve modifications that have been made to an approved
code; or
(b)
withdraw their approval from an approved code,
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with effect from a date given in the approval or withdrawal, and must
do so if the code ceases to meet the criteria set out in section 124E.
(10)
The consent of the Secretary of State is required for the approval of a
code or the modification of an approved code.
(11)
Where OFCOM give or withdraw an approval under this section, they
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must give notification of their approval or of its withdrawal.
(12)
The notification must be published in such manner as OFCOM
consider appropriate for bringing it to the attention of the persons who,
in OFCOM’s opinion, are likely to be affected by the approval or
withdrawal.
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(13)
The notification and, where the notification is of an approval, the
approved code or modifications to which it relates, must be laid by
OFCOM before each House of Parliament.”
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Initial obligations code by OFCOM in the absence of an approved code
After section 124C of the Communications Act 2003 insert—
5
“124D
Initial obligations code by OFCOM in the absence of an approved
code
(1)
For any period when sections 124A and 124B are in force but for which
there is no approved initial obligations code under section 124C,
OFCOM must by order make a code for the purpose of regulating the
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initial obligations.
(2)
OFCOM may, but need not, comply with subsection (1) so far as the
period falls six months or less after sections 124A and 124B come into
force.
(3)
A code under this section may do any of the things mentioned in
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section 124C(3) to (5).
(4)
A code under this section may also—
(a)
establish one or more bodies corporate with the capacity to
make their own rules and establish their own procedures;
(b)
determine the jurisdiction of a body established by the code or,
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for the purposes of the code, of any other person;
(c)
confer jurisdiction with respect to any matter on OFCOM
themselves (but this is subject to anything else in or under the
copyright infringement provisions that relates to appeals by
subscribers);
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(d)
provide for a person on whom jurisdiction is conferred to make
awards of compensation, to direct the reimbursement of costs,
or to do both;
(e)
provide for such a person to enforce, or to participate in the
enforcement of, any awards or directions made under the code;
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(f)
make other provision for the enforcement of such awards and
directions; and
(g)
make other provision for the purpose of regulating the initial
obligations.
(5)
OFCOM must not make a code under this section unless they are
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satisfied that it meets the criteria set out in section 124E.
(6)
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
that while it is in force it continues to meet the criteria set out in
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section 124E.
(7)
The consent of the Secretary of State is required for the making or
amendment by OFCOM of a code under this section.
(8)
Section 403 applies to the power of OFCOM to make an order under
this section.
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(9)
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 initial obligations code
After section 124D of the Communications Act 2003 insert—
5
“124E
Contents of initial obligations code
(1)
The criteria referred to in sections 124C(6) and 124D(5) are—
(a)
that the code makes the required provision about copyright
infringement reports (see subsection (2));
(b)
that it makes the required provision about the notification of
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subscribers (see subsection (3));
(c)
that it makes provision about how internet service providers are
to keep information about subscribers;
(d)
that it limits the time for which they may keep that information;
(e)
that it makes any provision about contributions towards
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meeting costs that is required to be included by an order under
section 124L;
(f)
that the requirements concerning enforcement and related
matters are met in relation to the code (see subsection (4));
(g)
that the provisions of the code are objectively justifiable in
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relation to the matters to which it relates;
(h)
that those provisions are not such as to discriminate unduly
against particular persons or against a particular description of
persons;
(i)
that those provisions are proportionate to what they are
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intended to achieve; and
(j)
that, in relation to what those provisions are intended to
achieve, they are transparent.
(2)
The required provision about copyright infringement reports is
provision that specifies—
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(a)
requirements as to the means of obtaining evidence of
infringement of copyright for inclusion in a report;
(b)
the standard of evidence that must be included;
(c)
the required form of the report; and
(d)
a time limit for making the report.
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(3)
The required provision about the notification of subscribers is
provision that specifies, in relation to a subscriber in relation to whom
an internet service provider receives one or more copyright
infringement reports—
(a)
requirements as to the means by which the provider identifies
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the subscriber;
(b)
which of the reports the provider must notify the subscriber of;
and
(c)
requirements as to the form, contents and means of the
notification in each case.
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(4)
The requirements concerning enforcement and related matters are—

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(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; and
(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.
(5)
The provision mentioned in subsection (4) may 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 failure to comply with the code or the copyright
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infringement provisions.
(6)
In this section—
“copyright infringement dispute” means a dispute that—
(a)
is between one or more copyright owners, internet
service providers or subscribers; and
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(b)
relates to an act or omission in relation to an initial
obligation or the initial obligations code;
“subscriber appeal” means an appeal by a subscriber about—
(a)
a copyright infringement report;
(b)
identification of the subscriber as a person in relation to
30
whom the report was made;
(c)
retention by an internet service provider of details of an
alleged infringement; or
(d)
inclusion of those details in a copyright infringement
list.”
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Progress reports
After section 124E of the Communications Act 2003 insert—
“124F
Progress reports
(1)
OFCOM must prepare the following reports for the Secretary of State
about the infringement of copyright by subscribers to internet access
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services.
(2)
OFCOM must prepare a full report for—
(a)
the period of 12 months beginning with the first day on which
there is an initial obligations code in force; and
(b)
each successive period of 12 months.
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(3)
OFCOM must prepare an interim report for—

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(a)
the period of 3 months beginning with the first day on which
there is an initial obligations code in force; and
(b)
each successive period of 3 months, other than one ending at the
same time as a period of 12 months under subsection (2).
(4)
A full report under this section must include—
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(a)
an assessment of the current level of subscribers’ use of internet
access services to infringe copyright;
(b)
a description of the steps taken by copyright owners to enable
subscribers to obtain lawful access to copyright works;
(c)
a description of the steps taken by copyright owners to inform,
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and change the attitude of, members of the public in relation to
the infringement of copyright;
(d)
an assessment of the extent of the steps mentioned in
paragraphs (b) and (c);
(e)
an assessment of the extent to which copyright owners have
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made copyright infringement reports;
(f)
an assessment of the extent to which they have brought legal
proceedings against subscribers in relation to whom such
reports have been made;
(g)
an assessment of the extent to which any such proceedings have
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been against subscribers in relation to whom a substantial
number of reports have been made; and
(h)
anything else that the Secretary of State directs OFCOM to
include in the report.
(5)
An interim report under this section must include—
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(a)
the assessments mentioned in subsection (4)(a), (e) and (f); and
(b)
anything else that the Secretary of State directs OFCOM to
include in the report.
(6)
OFCOM must send a report prepared under this section to the
Secretary of State as soon as practicable after the end of the period for
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which it is prepared.”
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Obligations to limit internet access: assessment and preparation
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—
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(a)
assess whether one or more technical obligations should be
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
State.
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(2)
A “technical obligation”, in relation to an internet service provider, is an
obligation for the provider to take a technical measure against
particular subscribers to its service.
(3)
A “technical measure” is a measure that—
(a)
limits the speed or other capacity of the service provided to a
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subscriber;