Digital Economy Bill [HL]

House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]

Digital Economy Bill [HL]
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Interpretation and consequential provision
(1)
After section 124L of the Communications Act 2003 insert—
“124M
Interpretation
In sections 124A to 124L and this section—
“apparent infringement”, in relation to a copyright infringement
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report, means the infringement of copyright that the report
states appears to have taken place;
“copyright infringement list” has the meaning given in section
124B(2);
“copyright infringement provisions” means sections 124A to 124L
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and this section;
“copyright infringement report” has the meaning given in section
124A(3);
“copyright owner” means—
(a)
a copyright owner within the meaning of Part 1 of the
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Copyright, Designs and Patents Act 1988 (see section
173 of that Act); or
(b)
someone authorised by that person to act on the
person’s behalf;
“copyright work” has the same meaning as in Part 1 of the
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Copyright, Designs and Patents Act 1988 (see section 1(2) of that
Act);
“initial obligations” has the meaning given in section 124C(1);
“initial obligations code” has the meaning given in section
124A(2);
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“internet access service” means an electronic communications
service that—
(a)
is provided to a subscriber;
(b)
consists entirely or mainly of the provision of access to
the internet; and
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(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
internet access service;
“IP address” means an internet protocol address;
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“subscriber”, in relation to an internet access service, means a
person who—
(a)
receives the service under an agreement between the
person and the provider of the service; and
(b)
does not receive it as a communications provider;
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“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
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functions), after paragraph (i) insert—
“(ia)
preparing a report under section 124F;

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(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—
“9A
A decision relating to any of sections 124A to 124M or to anything
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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—
“Prevention or reduction of online infringement of copyright
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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 any infringement of copyright by
means of the internet if satisfied that—
(a)
the infringement is having a serious adverse effect on
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businesses or consumers, and
(b)
making the amendment is a proportionate way to address that
effect.
(2)
The following provisions apply to the power conferred by this section.
(3)
Subsections (4) to (6) do not limit that power.
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(4)
The power may be exercised so as to make new provision or to amend
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;
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(c)
require a person to pay fees.
(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
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provision (whenever made) contained in or made under an Act.
(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)
The Secretary of State may not make an order under this section
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unless—
(a)
the Secretary of State has consulted the persons the Secretary of
State thinks likely to be affected by the order (or persons who
represent such persons) and such other persons as the Secretary
of State thinks fit;
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(b)
following that consultation, the Secretary of State has laid a
draft order and explanatory document before Parliament in
accordance with section 302B; and
(c)
the order is made in accordance with section 302C.
302B
Draft order and explanatory document laid before Parliament
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(1)
If, after the conclusion of the consultation required by section 302A(9),
the Secretary of State considers it appropriate to proceed with the
making of an order under section 302A, the Secretary of State must lay
before Parliament—
(a)
a draft of the order, together with
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(b)
an explanatory document.
(2)
The explanatory document must—
(a)
describe the infringement of copyright that the Secretary of
State is satisfied is having a serious adverse effect on businesses
or consumers;
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(b)
describe the effect;
(c)
explain why the Secretary of State is satisfied that making the
amendment is a proportionate way to address that effect;
(d)
give details of the consultation undertaken under section
302A(9), any representations received as a result of the
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consultation, and the changes (if any) made as a result of such
representations.
(3)
Where a person making representations in response to consultation
under section 302A(9) has requested the Secretary of State not to
disclose them, the Secretary of State must not disclose them under
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subsection (2)(d) if or to the extent that to do so would (disregarding
any connection with proceedings in Parliament) constitute a breach of
confidence actionable by any person.
(4)
If information in representations made by a person in response to
consultation under section 302A(9) relates to another person, the
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Secretary of State need not disclose the information under subsection
(2)(d) if or to the extent that—
(a)
it appears to the Secretary of State that the disclosure of that
information could adversely affect the interests of that other
person; and
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(b)
the Secretary of State has been unable to obtain the consent of
that other person to the disclosure.
(5)
Subsections (3) and (4) do not affect any disclosure that is requested by,
and made to, a committee of either House of Parliament charged with
reporting on the draft order.
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302C
Super-affirmative procedure
(1)
The Secretary of State must have regard to—
(a)
any representations,
(b)
any resolutions of either House of Parliament, and
(c)
any recommendations of a committee of either House of
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Parliament charged with reporting on the draft order,
made during the 60-day period with regard to the draft order.

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(2)
If, after the expiry of the 60-day period, the Secretary of State wishes to
make an order in the terms of the draft, the Secretary of State must lay
before Parliament a statement—
(a)
stating whether any representations were made under
subsection (1)(a); and
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(b)
if any representations were so made, giving details of them.
(3)
The Secretary of State may after the laying of such a statement make an
order in the terms of the draft if it is approved by a resolution of each
House of Parliament.
(4)
However, a committee of either House charged with reporting on the
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draft order may, at any time after the laying of a statement under
subsection (2) and before the draft order is approved by that House
under subsection (3), recommend under this subsection that no further
proceedings be taken in relation to the draft order.
(5)
Where a recommendation is made by a committee of either House
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under subsection (4) in relation to a draft order, no proceedings may be
taken in relation to the draft order in that House under subsection (3)
unless the recommendation is, in the same Session, rejected by
resolution of that House.
(6)
If, after the expiry of the 60-day period, the Secretary of State wishes to
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make an order consisting of a version of the draft order with material
changes, the Secretary of State must lay before Parliament—
(a)
a revised draft order; and
(b)
a statement giving details of any representations made under
subsection (1)(a) and of the revisions proposed.
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(7)
The Secretary of State may after laying a revised draft order and
statement under subsection (6) make an order in the terms of the
revised draft if it is approved by a resolution of each House of
Parliament.
(8)
However, a committee of either House charged with reporting on the
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revised draft order may, at any time after the revised draft order is laid
under subsection (6) and before it is approved by that House under
subsection (7), recommend under this subsection that no further
proceedings be taken in relation to the revised draft order.
(9)
Where a recommendation is made by a committee of either House
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under subsection (8) in relation to a revised draft order, no proceedings
may be taken in relation to the revised draft order in that House under
subsection (7) unless the recommendation is, in the same Session,
rejected by resolution of that House.
(10)
Subsections (3) to (5) of section 302B apply in relation to the disclosure
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of representations under subsections (2)(b) and (6)(b) of this section as
they apply in relation to the disclosure of representations under
subsection (2)(d) of that section.
(11)
For the purposes of subsections (3) and (7) an order is made in the terms
of a draft order if it contains no material changes to the provisions of
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the draft order.

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(12)
In this section the “60-day period” means the period of 60 days
beginning with the day on which the draft order was laid before
Parliament under section 302B.
(13)
In calculating the 60-day period no account is to be taken of any time
during which Parliament is dissolved or prorogued or during which
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either House is adjourned for more than four days.”
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
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124N
Notification of failure in relation to internet domain registry
(1)
This section applies where the Secretary of State—
(a)
is satisfied that a serious relevant failure in relation to a
qualifying internet domain registry is taking place or has taken
place, and
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(b)
wishes to exercise the powers under section 124O or 124Q.
(2)
The Secretary of State must notify the internet domain registry,
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 a qualifying internet domain
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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
internet domain names, or
(b)
the arrangements made by the registry for dealing with
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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
adversely affected or is likely adversely to affect—
(a)
the reputation or availability of electronic communications
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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
United Kingdom or a part of the United Kingdom.
(5)
In this section and sections 124O to 124Q—
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“end-user”, in relation to a qualifying 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 maintained by the registry;
“prescribed” means prescribed by regulations made by the
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Secretary of State;
“qualifying internet domain registry” means a relevant body
that—

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(a)
maintains a relevant register of internet domain names,
and
(b)
operates a computer program or server that forms part
of the system that enables the names included in the
register to be used to access internet protocol addresses
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or other information by means of the internet;
“registrar”, in relation to a qualifying internet domain registry,
means a person authorised by the registry to act on behalf of
end-users in connection with the registration of internet domain
names;
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“relevant body” means a company formed and registered under
the Companies Act 2006 or a limited liability partnership;
“relevant register of internet domain names” means a register of—
(a)
the names of second level internet domains that form
part of the same UK-related top level internet domain,
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or
(b)
the names of third level internet domains that form part
of the same UK-related second level internet domain;
“second level internet domain” means an internet domain
indicated by the last two elements of an internet domain name;
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“third level internet domain” means an internet domain indicated
by the last three elements of an internet domain name;
“top level internet domain” means an internet domain indicated
by the last element of an internet domain name.
(6)
An internet domain is “UK-related” if, in the opinion of the Secretary of
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State, the last element of its name is likely to cause users of the internet,
or a class of such users, to believe that the domain and its sub-domains
are connected with the United Kingdom or a part of the United
Kingdom.”
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Appointment of manager of internet domain registry
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(1)
After section 124N of the Communications Act 2003 insert—
“124O
Appointment of manager of internet domain registry
(1)
This section applies where—
(a)
the Secretary of State has given a notification under section
124N to a qualifying internet domain registry specifying a
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failure,
(b)
the period allowed for making representations has expired, and
(c)
the Secretary of State is satisfied that the registry has not taken
the steps that the Secretary of State considers appropriate for
remedying the failure and any consequences of the failure.
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(2)
The Secretary of State may by order appoint a manager in respect of the
property and affairs of the internet domain registry for the purpose of
securing that the registry takes the steps described in subsection (1)(c).
(3)
The person appointed may be anyone whom the Secretary of State
thinks appropriate.
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(4)
The appointment of the manager does not affect—

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(a)
a right of a person to appoint a receiver of the registry’s
property, or
(b)
the rights of a receiver appointed by a person other than the
Secretary of State.
(5)
The Secretary of State must—
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(a)
keep the order under review, and
(b)
if appropriate, discharge all or part of the order.
(6)
The Secretary of State must discharge the order on the appointment of
a person to act as administrative receiver, administrator, provisional
liquidator or liquidator of the registry.
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(7)
When discharging an order under this section, the Secretary of State
may make savings and transitional provision.
(8)
The Secretary of State must send a copy of an order made under this
section to the registry as soon as practicable after it is made.
(9)
In subsection (4), “receiver” includes a manager (other than a manager
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appointed by the registry) and a person who is appointed as both
receiver and manager.
(10)
In subsection (6)—
“administrative receiver” means an administrative receiver within
the meaning of section 251 of the Insolvency Act 1986 or Article
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5(1) of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/
2405 (N.I. 19));
“administrator” means a person appointed to manage the affairs,
business and property of the registry under Schedule B1 to that
Act or Schedule B1 to that Order.
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124P
Functions of manager etc
(1)
An order under section 124O may make provision about the functions
to be exercised by, and the powers of, the manager.
(2)
The order may, in particular—
(a)
provide for the manager to have such of the functions of the
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registry’s directors as are specified in the order (including
functions exercisable only by a particular director or class of
directors), and
(b)
provide for any of the registry’s directors to be prevented from
exercising any of those functions.
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(3)
The order may make provision about the remuneration of the manager,
including in particular—
(a)
provision for the amount of the remuneration to be determined
by the Secretary of State, and
(b)
provision for the remuneration to be payable from the property
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of the registry.
(4)
In carrying out the functions conferred by the order, the manager acts
as the registry’s agent.
(5)
The Secretary of State may apply to the court for directions in relation
to any matter arising in connection with the functions or powers of the
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manager (and the costs of the application are to be paid by the registry).