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After section 124E of the Communications Act 2003 insert— |
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(1) | OFCOM must prepare the following reports for the Secretary of State |
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about the infringement of copyright by subscribers to internet access |
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(2) | OFCOM must prepare a full report for— |
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(a) | the period of 12 months beginning with the first day on which |
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there is an initial obligations code in force; and |
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(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 |
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there is an initial obligations code in force; and |
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(b) | each successive period of 3 months, other than one ending at the |
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same time as a period of 12 months under subsection (2). |
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(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 |
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access services to infringe copyright; |
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(b) | a description of the steps taken by copyright owners to enable |
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subscribers to obtain lawful access to copyright works; |
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(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 |
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the infringement of copyright; |
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(d) | an assessment of the extent of the steps mentioned in |
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(e) | an assessment of the extent to which copyright owners have |
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made copyright infringement reports; |
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(f) | an assessment of the extent to which they have brought legal |
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proceedings against subscribers in relation to whom such |
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(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 |
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number of reports have been made; and |
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(h) | anything else that the Secretary of State directs OFCOM to |
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(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 |
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(b) | anything else that the Secretary of State directs OFCOM to |
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(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 |
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10 | Obligations to limit internet access: assessment and preparation |
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After section 124F of the Communications Act 2003 insert— |
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“124G | Obligations to limit internet access: assessment and preparation |
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(1) | The Secretary of State may direct OFCOM to— |
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(a) | assess whether one or more technical obligations should be |
| 5 |
imposed on internet service providers; |
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(b) | take steps to prepare for the obligations; |
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(c) | provide a report on the assessment or steps to the Secretary of |
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(2) | A “technical obligation”, in relation to an internet service provider, is an |
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obligation for the provider to take a technical measure against some or |
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all relevant subscribers to its service. |
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(3) | A “technical measure” is a measure that— |
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(a) | limits the speed or other capacity of the service provided to a |
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(b) | prevents a subscriber from using the service to gain access to |
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particular material, or limits such use; |
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(c) | suspends the service provided to a subscriber; or |
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(d) | limits the service provided to a subscriber in another way. |
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(4) | A subscriber to an internet access service is “relevant” if the subscriber |
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is a relevant subscriber to the service, within the meaning of section |
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124B(3), in relation to one or more copyright owners. |
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(5) | The assessment and steps that the Secretary of State may direct |
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OFCOM to carry out or take under subsection (1) include, in |
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(a) | consultation of copyright owners, internet service providers, |
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subscribers or any other person; |
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(b) | an assessment of the likely efficacy of a technical measure in |
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relation to a particular type of internet access service; and |
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(c) | steps to prepare a proposed technical obligations code. |
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(6) | Internet service providers must give OFCOM any assistance that |
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OFCOM reasonably require for the purposes of complying with any |
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direction under this section. |
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(7) | The Secretary of State must lay before Parliament any direction under |
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11 | Obligations to limit internet access |
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After section 124G of the Communications Act 2003 insert— |
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“124H | Obligations to limit internet access |
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(1) | The Secretary of State may at any time by order impose a technical |
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obligation on internet service providers if the Secretary of State |
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considers it appropriate in view of— |
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(a) | an assessment carried out or steps taken by OFCOM under |
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(b) | any other consideration. |
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(2) | An order under this section must specify the date from which the |
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technical obligation is to have effect, or provide for it to be specified. |
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(3) | The order may also specify— |
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(a) | the criteria for taking the technical measure concerned against a |
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(b) | the steps to be taken as part of the measure and when they are |
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(4) | No order is to be made under this section unless a draft of the order has |
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been laid before Parliament and approved by a resolution of each |
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12 | Code by OFCOM about obligations to limit internet access |
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After section 124H of the Communications Act 2003 insert— |
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“124I | Code by OFCOM about obligations to limit internet access |
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(1) | For any period during which there are one or more technical |
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obligations in force under section 124H, OFCOM must by order make |
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a technical obligations code for the purpose of regulating those |
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(2) | The code may be made separately from, or in combination with, any |
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initial obligations code made under section 124D. |
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(3) | A code under this section may— |
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(a) | do any of the things mentioned in section 124C(3) to (5) or |
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section 124D(5)(a)to (f)); and |
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(b) | make other provision for the purpose of regulating the technical |
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(4) | 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 124J. |
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(a) | keep a code under this section under review; and |
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(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 |
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(6) | The consent of the Secretary of State is required for the making or |
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amendment by OFCOM of a code under this section. |
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(7) | Section 403 applies to the power of OFCOM to make an order under |
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(8) | A statutory instrument containing an order made by OFCOM under |
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this section is subject to annulment in pursuance of a resolution of |
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either House of Parliament.” |
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13 | Contents of code about obligations to limit internet access |
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After section 124I of the Communications Act 2003 insert— |
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“124J | Contents of code about obligations to limit internet access |
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(1) | The criteria referred to in section 124I(4) are— |
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(a) | that the requirements concerning enforcement and related |
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matters are met in relation to the code (see subsection (2)); |
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(b) | that it makes any provision about contributions towards |
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meeting costs that is required to be included by an order under |
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(c) | that it makes any other provision that the Secretary of State |
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(d) | that the provisions of the code are objectively justifiable in |
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relation to the matters to which it relates; |
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(e) | that those provisions are not such as to discriminate unduly |
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against particular persons or against a particular description of |
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(f) | that those provisions are proportionate to what they are |
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(g) | that, in relation to what those provisions are intended to |
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achieve, they are transparent. |
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(2) | The requirements concerning enforcement and related matters are— |
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(a) | that OFCOM or another person has, under the code, the |
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functions of administering and enforcing it, including the |
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function of resolving copyright infringement disputes; |
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(b) | that any such other person is sufficiently independent of |
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internet service providers and copyright owners; |
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(c) | that there is a person who, under the code, has the function of |
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determining subscriber appeals; |
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(d) | that that person is sufficiently independent of internet service |
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providers, copyright owners and OFCOM; |
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(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) |
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or (c) of functions in relation to the code to be met by internet |
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service providers and copyright owners; and |
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(f) | that provision is made, in accordance with subsection (3), for |
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the appeal to the First-tier Tribunal of determinations of |
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(3) | The provision mentioned in subsection (2)(f) is provision— |
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(a) | enabling a determination of a subscriber appeal to be appealed |
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to the First-tier Tribunal, including on grounds that it was based |
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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 |
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(i) | withdraw a technical measure; |
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(ii) | confirm a technical measure; |
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(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 |
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giving rise to the technical measure; |
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|
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|
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(iv) | remit the decision whether to confirm the technical |
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measure, or any matter relating to that decision, to a |
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person mentioned in subsection (2)(c); |
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(c) | in relation to recovery of costs awarded by the Tribunal. |
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(4) | The provision mentioned in subsection (2) may also (unless the |
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Secretary of State requires otherwise) include, in particular— |
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(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 |
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being specified in section 124K(2); |
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(b) | provision requiring a copyright owner to indemnify an internet |
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service provider for any loss or damage resulting from the |
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owner’s infringement or error in relation to the code or the |
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copyright infringement provisions; |
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(c) | provision for the taking of a technical measure to be postponed |
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until a subscriber appeal to a person mentioned in subsection |
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(2)(c) or an appeal to the First-tier Tribunal has been |
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“copyright infringement dispute” means a dispute that— |
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(a) | is between one or more copyright owners, internet |
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service providers or subscribers; and |
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(b) | relates to an act or omission in relation to a technical |
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obligation or the technical obligations code; |
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“subscriber appeal” means an appeal by a subscriber against— |
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(a) | the proposed taking of a technical measure against a |
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(b) | the taking of a technical measure against a subscriber.” |
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14 | Enforcement of obligations |
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After section 124J of the Communications Act 2003 insert— |
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“124K | Enforcement of obligations |
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(1) | Sections 94 to 96 apply in relation to a contravention of an initial |
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obligation or a technical obligation, or a contravention of an obligation |
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under section 124G(6), as they apply in relation to a contravention of a |
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condition set out under section 45. |
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(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 |
| |
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(b) | proportionate to the contravention in respect of which it is |
| 40 |
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(3) | In making that determination OFCOM must have regard to— |
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(a) | any representations made to them by the internet service |
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|
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|
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(b) | any steps taken by the provider towards complying with the |
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obligations contraventions of which have been notified to the |
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provider under section 94 (as applied); and |
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(c) | any steps taken by the provider for remedying the |
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consequences of those contraventions. |
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(4) | The Secretary of State may by order amend this section so as to |
| |
substitute a different maximum penalty for the maximum penalty for |
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the time being specified in subsection (2). |
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(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.” |
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After section 124K of the Communications Act 2003 insert— |
| |
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(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 |
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copyright infringement provisions. |
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(2) | Any provision specified under subsection (1) must relate to payment of |
| |
contributions by one or more of the following only— |
| 20 |
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(b) | internet service providers; |
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(c) | in relation to copyright infringement disputes or subscriber |
| |
appeals within the meaning of section 124E or 124J, subscribers. |
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(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 |
| |
| 35 |
(c) | provision about how costs, expected costs or contributions must |
| |
| |
(d) | other provision about when and how contributions must be |
| |
| |
(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 |
| |
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|
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|