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House of Lords
Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]


Digital Economy Bill [HL]

12

 

9       

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

5

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.

10

(3)   

OFCOM must prepare an interim report for—

(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).

15

(4)   

A full report under this section must include—

(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;

20

(c)   

a description of the steps taken by copyright owners to inform,

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);

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(e)   

an assessment of the extent to which copyright owners have

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;

30

(g)   

an assessment of the extent to which any such proceedings have

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.

35

(5)   

An interim report under this section must include—

(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

40

Secretary of State as soon as practicable after the end of the period for

which it is prepared.”

 
 

Digital Economy Bill [HL]

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10      

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—

(a)   

assess whether one or more technical obligations should be

5

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.

(2)   

A “technical obligation”, in relation to an internet service provider, is an

10

obligation for the provider to take a technical measure against some or

all relevant 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

subscriber;

15

(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)   

A subscriber to an internet access service is “relevant” if the subscriber

20

is a relevant subscriber to the service, within the meaning of section

124B(3), in relation to one or more copyright owners.

(5)   

The assessment and steps that the Secretary of State may direct

OFCOM to carry out or take under subsection (1) include, in

particular—

25

(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

relation to a particular type of internet access service; and

(c)   

steps to prepare a proposed technical obligations code.

30

(6)   

Internet service providers must give OFCOM any assistance that

OFCOM reasonably require for the purposes of complying with any

direction under this section.

(7)   

The Secretary of State must lay before Parliament any direction under

this section.”

35

11      

Obligations to limit internet access

After section 124G of the Communications Act 2003 insert—

“124H   

 Obligations to limit internet access

(1)   

The Secretary of State may at any time by order impose a technical

obligation on internet service providers if the Secretary of State

40

considers it appropriate in view of—

(a)   

an assessment carried out or steps taken by OFCOM under

section 124G; or

(b)   

any other consideration.

 
 

Digital Economy Bill [HL]

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(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

subscriber;

5

(b)   

the steps to be taken as part of the measure and when they are

to be taken.

(4)   

No order is to be made under this section unless a draft of the order has

been laid before Parliament and approved by a resolution of each

House.”

10

12      

Code by OFCOM about obligations to limit internet access

After section 124H of the Communications Act 2003 insert—

“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

15

a technical obligations code for the purpose of regulating those

obligations.

(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—

20

(a)   

do any of the things mentioned in section 124C(3) to (5) or

section 124D(5)(a)to (f)); and

(b)   

make other provision for the purpose of regulating the technical

obligations.

(4)   

OFCOM must not make a code under this section unless they are

25

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

that while it is in force it continues to meet the criteria set out in

30

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

this section.

35

(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.”

 
 

Digital Economy Bill [HL]

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13      

Contents of code about obligations to limit internet access

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

5

matters are met in relation to the code (see subsection (2));

(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

10

requires it to make;

(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

15

persons;

(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.

20

(2)   

The requirements concerning enforcement and related matters are—

(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

25

internet service providers and copyright owners;

(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;

30

(e)   

that there are adequate arrangements under the code for the

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

35

the appeal to the First-tier Tribunal of determinations of

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

40

on an error of fact, wrong in law or unreasonable;

(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;

45

(iii)   

take any steps that a person administering or enforcing

the code could take in relation to the act or omission

giving rise to the technical measure;

 
 

Digital Economy Bill [HL]

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(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);

(v)   

award costs;

(c)   

in relation to recovery of costs awarded by the Tribunal.

5

(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

a penalty not exceeding the maximum penalty for the time

being specified in section 124K(2);

10

(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

copyright infringement provisions;

(c)   

provision for the taking of a technical measure to be postponed

15

until a subscriber appeal to a person mentioned in subsection

(2)(c) or an appeal to the First-tier Tribunal has been

determined.

(5)   

In this section—

“copyright infringement dispute” means a dispute that—

20

(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

obligation or the technical obligations code;

“subscriber appeal” means an appeal by a subscriber against—

25

(a)   

the proposed taking of a technical measure against a

subscriber; or

(b)   

the taking of a technical measure against a subscriber.”

14      

Enforcement of obligations

After section 124J of the Communications Act 2003 insert—

30

“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

under section 124G(6), as they apply in relation to a contravention of a

condition set out under section 45.

35

(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—

(a)   

appropriate; and

(b)   

proportionate to the contravention in respect of which it is

40

imposed.

(3)   

In making that determination OFCOM must have regard to—

(a)   

any representations made to them by the internet service

provider;

 
 

Digital Economy Bill [HL]

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(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

consequences of those contraventions.

5

(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

(4) unless a draft of the order has been laid before Parliament and

10

approved by a resolution of each House.”

15      

Sharing of costs

After section 124K of the Communications Act 2003 insert—

“124L   

 Sharing of costs

(1)   

The Secretary of State may by order specify provision that must be

15

included in an initial obligations code or a technical obligations code

about payment of contributions towards costs incurred under the

copyright infringement provisions.

(2)   

Any provision specified under subsection (1) must relate to payment of

contributions by one or more of the following only—

20

(a)   

copyright owners;

(b)   

internet service providers;

(c)   

in relation to copyright infringement disputes or subscriber

appeals within the meaning of section 124E or 124J, subscribers.

(3)   

Provision specified under subsection (1) may relate to, in particular—

25

(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.

(4)   

Provision specified under subsection (1) may include, in particular—

30

(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

less than expected);

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(c)   

provision about how costs, expected costs or contributions must

be calculated;

(d)   

other provision about when and how contributions must be

paid.

(5)   

No order is to be made under this section unless a draft of the order has

40

been laid before Parliament and approved by a resolution of each

House.”

 
 

 
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