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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Renewal of radio multiplex licences
(1)
After section 58 of the Broadcasting Act 1996 insert—
“58A
Renewal of radio multiplex licences: supplementary
(1)
The Secretary of State may by regulations—
(a)
amend section 58, and
5
(b)
make further provision about the renewal of radio multiplex
licences.
(2)
The regulations may, in particular, make provision about—
(a)
the circumstances in which OFCOM may renew a radio
multiplex licence,
10
(b)
the period for which a licence may be renewed,
(c)
the information that OFCOM may require an applicant for
renewal of a licence to provide,
(d)
the requirements that must be met by such an applicant,
(e)
the grounds on which OFCOM may refuse an application for
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renewal of a licence,
(f)
payments to be made in respect of a licence following its
renewal, and
(g)
further conditions to be included in a licence following its
renewal.
20
(3)
The regulations may, in particular, amend or modify this Part of this
Act.
(4)
A statutory instrument containing the regulations may not be made
unless a draft of the instrument has been laid before, and approved by
a resolution of, each House of Parliament.
25
(5)
The power to make regulations under this section may not be exercised
after 31 December 2015 (but this does not affect the continuation in
force of any regulations made under this section before that date).”
(2)
In section 72(1) of that Act (interpretation of Part 2), before the definition of
“radio multiplex service” insert—
30
““radio multiplex licence” means a licence to provide a radio
multiplex service;”.
Regulation of television and radio services
37
Application of regulatory regimes to broadcasters
In section 263 of the Communications Act 2003 (application of regulatory
35
regimes to broadcasters), for subsection (4) substitute—
“(4)
The Secretary of State may by order provide for—
(a)
a condition included by virtue of this Act in a regulatory regime
to be excluded from the regime;
(b)
a condition excluded from a regulatory regime by an order
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under this subsection to be included in the regime again.

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(4A)
An order under subsection (4) may, in particular, provide for a
condition to be included or excluded for a period specified in the
order.”
Access to electromagnetic spectrum
38
Payment for licences
5
(1)
Section 12 of the Wireless Telegraphy Act 2006 (charges for grant of licence) is
amended as follows.
(2)
In subsection (5) at the end insert “, but this is subject to subsection (6).”
(3)
After subsection (5) insert—
“(6)
Regulations under or for the purposes of subsection (1)(b), so far as it
10
relates to payments during the term of a licence, may be made so as to
apply in relation to a licence granted in accordance with regulations
under section 14, but only in the following cases—
(a)
where provision included in the licence with the consent of the
holder of the licence provides for the regulations to apply;
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(b)
where the licence includes terms restricting the exercise by
OFCOM of their power to revoke the licence before the end of a
period and that period has expired;
(c)
where the licence would, but for a variation, have ceased to
have effect at the end of a period and that period has expired;
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(d)
where the licence is a surrendered-spectrum licence.
(7)
Provision may not be made by virtue of subsection (6)(c) or (d) without
the consent of the Secretary of State.
(8)
A wireless telegraphy licence is a “surrendered-spectrum licence” if —
(a)
it is granted under arrangements involving (before the grant or
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later) the variation, revocation or expiry of another wireless
telegraphy licence;
(b)
the arrangements are with a view to enabling the holder of that
other licence to comply with a limit applying to frequencies in
respect of which a person may hold licences; and
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(c)
it authorises the use after that variation, revocation or expiry of
a frequency whose use until then was or is authorised by that
other licence.
(9)
In relation to a surrendered-spectrum licence there may be more than
one such other licence (“predecessor licence”) and a licence may be a
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predecessor licence to more than one surrendered-spectrum licence.”
(4)
Section 14 of the Wireless Telegraphy Act 2006 (bidding for licences) is
amended as follows.
(5)
In subsection (5) after “those sums must” insert “, subject to subsection (5A),”.
(6)
After subsection (5) insert—
40
“(5A)
The regulations may, with the consent of the Secretary of State, make
provision permitting or requiring a surrendered-spectrum licence to
which the regulations apply to include—

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(a)
provision requiring all or part of a sum that would otherwise be
payable to OFCOM under subsection (5) to be paid to a person
who was or is the holder of a predecessor licence;
(b)
provision requiring a sum in addition to that payable to
OFCOM under subsection (5) to be paid to such a person;
5
(c)
provision specifying any such sum or part or the method for
determining it.”
(7)
After subsection (8) insert—
“(9)
In subsection (5A) “surrendered-spectrum licence” and “predecessor
licence” have the meaning given by section 12(8) and (9).”
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Enforcement of licence terms etc
(1)
In Chapter 4 of Part 2 of the Wireless Telegraphy Act 2006 (enforcement of
regulation of radio spectrum) after section 43 insert—
“43A
Special procedure for contraventions of certain provisions
(1)
OFCOM may impose a penalty on a person if—
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(a)
that person is or has been in contravention in any respect of a
provision, term or limitation of a wireless telegraphy licence;
(b)
OFCOM have notified that person that it appears to them that
the provision, term or limitation has been contravened in that
respect;
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(c)
this section applies to that contravention by virtue of provision
included in the licence; and
(d)
that contravention is not one in respect of which proceedings
for an offence under this Chapter have been brought against
that person.
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(2)
A licence may provide in accordance with subsection (1)(c) that this
section applies to the contravention of a provision, term or limitation
only if it appears to OFCOM that a direction under section 5 requires
the provision, term or limitation to be included in the licence.
(3)
Where OFCOM impose a penalty on a person under this section, they
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must—
(a)
notify that person of that decision and of their reasons for that
decision; and
(b)
in that notification, fix a reasonable period after it is given as the
period within which the penalty is to be paid.
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(4)
A penalty imposed under this section—
(a)
must be paid to OFCOM; and
(b)
if not paid within the period fixed by them, is to be recoverable
by them accordingly.
(5)
No proceedings for an offence under this Chapter may be commenced
40
against a person in respect of a contravention in respect of which a
penalty has been imposed by OFCOM under this section.
(6)
The amount of a penalty imposed under this section is to be such
amount not exceeding 10 per cent of the relevant amount of gross
revenue as OFCOM think—
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(a)
appropriate; and
(b)
proportionate to the contravention in respect of which it is
imposed.”
(2)
In section 44 of that Act (relevant amount of gross revenue), in subsections (1)
and (10), after “43” insert “or 43A”.
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(3)
In section 400 of the Communications Act 2003 (destination of licence fees and
penalties), in subsection (1)(d), after “42” insert “or 43A”.
Video recordings
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Classification of video games etc
(1)
Section 2 of the Video Recordings Act 1984 (exempted video works) is
10
amended as follows.
(2)
In subsection (1)—
(a)
after “video work” insert “other than a video game”,
(b)
after paragraph (a) insert “or”, and
(c)
omit paragraph (c) (and the word “or” before it).
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(3)
After that subsection insert—
“(1A)
Subject to subsection (2) or (3) below, a video game is for the purposes
of this Act an exempted work if—
(a)
it is, taken as a whole, designed to inform, educate or instruct;
(b)
it is, taken as a whole, concerned with sport, religion or music;
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or
(c)
it satisfies one or more of the conditions in section 2A.”
(4)
After section 2 of that Act insert—
“2A
Conditions relating to video games
(1)
The conditions referred to in section 2(1A)(c) are as follows.
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(2)
The first condition is that the video game does not include any of the
following—
(a)
depictions of violence towards human or animal characters,
whether or not the violence looks realistic and whether or not
the violence results in obvious harm,
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(b)
depictions of violence towards other characters where the
violence looks realistic,
(c)
depictions of criminal activity that are likely, to any extent, to
stimulate or encourage the commission of offences,
(d)
depictions of activities involving illegal drugs or the misuse of
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drugs,
(e)
words or images that are likely, to any extent, to stimulate or
encourage the use of alcohol or tobacco,
(f)
words or images that are intended to convey a sexual message,
(g)
swearing, or
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(h)
words or images that are intended or likely, to any extent, to
cause offence, whether on the grounds of race, gender,
disability, religion or belief or sexual orientation or otherwise.

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(3)
In subsection (2) “human or animal character” means a character that is,
or whose appearance is similar to that of—
(a)
a human being, or
(b)
an animal that exists or has existed in real life,

but does not include a simple stick character or any equally basic
5
representation of a human being or animal.
(4)
The second condition is that the designated authority, or a person
nominated by the designated authority for the purposes of this section,
has confirmed in writing that the video game is suitable for viewing by
persons under the age of 12.
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(5)
The Secretary of State may by regulations amend this section—
(a)
by amending the first condition, or
(b)
by adding a further condition (or by amending or removing
such a condition).
(6)
Regulations under this section may make provision by reference to
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documents produced by the designated authority.”
(5)
In section 3 of that Act (exempted supplies), after subsection (8) insert—
“(8A)
The supply of a video recording in the form of a machine of a type
designed primarily for use in an amusement arcade is an exempted
supply unless the video game (or, if more than one, any of the video
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games) that it contains—
(a)
depicts, to any significant extent, anything falling within section
2(2)(a), (b), (c) or (d) or (3), or
(b)
is likely to any significant extent to stimulate or encourage
anything falling within section 2(2)(a) or, in the case of anything
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falling within section 2(2)(b), is likely to any extent to do so.
(8B)
The supply of any other video recording is an exempted supply if the
recording is supplied for the purpose only of its use in connection with
a supply that is an exempted supply under subsection (8A).”
(6)
At the end of that section insert—
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“(13)
The Secretary of State may by regulations amend this section and the
regulations may, in particular—
(a)
add a case in which the supply of a video recording is an
exempted supply for the purposes of this Act, or
(b)
repeal a provision of this section.”
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Designated authority for video games etc
(1)
After section 4 of the Video Recordings Act 1984 insert—
“4ZA
Designated authorities for video games and other video works
(1)
The power to designate a person by notice under section 4 includes
power to designate different persons—
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(a)
as the authority responsible for making arrangements in respect
of video games (“the video games authority”), and
(b)
as the authority responsible for making arrangements in respect
of other video works (“the video works authority”).

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(2)
Where there are two designated authorities, references in this Act to the
designated authority, in relation to a video work, are references to the
designated authority responsible for making arrangements in respect
of the video work, taking account of any allocation in force under
section 4ZB.
5
4ZB
Designated authorities: allocation of responsibility for video games
(1)
Where there are two designated authorities, the video games authority
may, with the consent of the video works authority, allocate to that
authority responsibility—
(a)
for a class of video games, or
10
(b)
for video games, or a class of video games, when (and only
when) they are contained in a video recording that is described
in the allocation (whether by reference to its contents, to the
manner in which it is, or is to be, supplied or otherwise).
(2)
If an allocation is in force—
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(a)
the video works authority is responsible for making
arrangements under this Act in respect of the allocated video
games, and
(b)
the video games authority ceases to be responsible for making
such arrangements.
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(3)
An allocation—
(a)
must be made by a notice, and
(b)
may be withdrawn at any time by a notice given by the video
games authority with the consent of the video works authority.
(4)
When making or withdrawing an allocation under this section, the
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video games authority must have regard to any guidance issued by the
Secretary of State.
(5)
A notice under this section must be—
(a)
sent to the Secretary of State, and
(b)
published in such manner as the video games authority
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considers appropriate.
(6)
A question as to which designated authority is responsible for making
arrangements in respect of a video game may be conclusively
determined by the video games authority.
4ZC
Designated authorities: video works included in video games
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(1)
The video games authority may make such arrangements in respect of
video works included in video games as it considers are necessary for
the purposes of fulfilling its responsibilities in respect of video games.
(2)
Where there are two designated authorities, the arrangements made by
the video games authority under section 4 must, to the extent that the
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video games authority considers appropriate, include either or both of
the following—
(a)
arrangements for having regard to any classification certificate
issued by the video works authority in respect of a video work
included in a video game;
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Digital Economy Bill [HL]
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(b)
arrangements for obtaining and having regard to a
determination by the video works authority as to the suitability
of all or part of a video work included in a video game.
(3)
For the purpose of determining the extent to which arrangements
described in subsection (2)(a) or (b) are appropriate, the video games
5
authority must—
(a)
consult the video works authority, and
(b)
have regard to any guidance issued by the Secretary of State.
(4)
In this section, “suitability” means suitability for the issue of a
classification certificate or suitability for the issue of a classification
10
certificate of a particular description.”
(2)
Schedule 1 (which contains further amendments of the Video Recordings Act
1984) has effect.
Copyright and performers’ property rights: licensing and penalties
42
Extension and regulation of licensing of copyright and performers’ rights
15
(1)
In the Copyright, Designs and Patents Act 1988 (the “1988 Act”) after section
116 insert—
“Additional licensing and regulation
116A
Licensing of orphan works
(1)
The Secretary of State may by regulations provide for authorising a
20
licensing body or other person to do, or to grant licences to do, acts in
relation to an orphan work which would otherwise require the consent
of the copyright owner.
(2)
An authorisation or licence under the regulations in favour of any
person must not preclude any authorisation or licence in favour of
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another person.
(3)
The regulations may provide for the treatment of royalties or other
sums paid in respect of an authorisation or licence, including—
(a)
the deduction of administrative costs;
(b)
the period for which sums must be held for the copyright
30
owner;
(c)
the treatment of sums after that period (as bona vacantia or
otherwise).
(4)
The regulations may provide for determining the rights and obligations
of any person if an interest in copyright ceases to be included in an
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orphan works register (see section 116C).
(5)
The regulations may provide for the Secretary of State to determine
whether any requirement of the regulations for a person’s becoming or
remaining authorised has been met or ceased to be met.
116B
Extended licensing schemes
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(1)
The Secretary of State may by regulations provide for authorising a
licensing body to grant copyright licences (within the meaning of