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

Digital Economy Bill [HL]


Digital Economy Bill [HL]

5

 

3       

OFCOM reports on media content

After section 264 of the Communications Act 2003 insert—

“264A   

OFCOM reports: wider review and reporting obligations

(1)   

When carrying out a review under section 264 for a period, OFCOM

must also carry out a review of the extent to which material included in

5

media services during that period (taken together over the period as a

whole) contributed towards the fulfilment of the public service

objectives.

(2)   

Every report under section 264 must—

(a)   

include a report on the matters found on the review under this

10

section,

(b)   

specify, and comment on, whatever changes appear to OFCOM

to have occurred, during the period to which the report relates,

in the extent to which the public service objectives have been

fulfilled,

15

(c)   

specify, and comment on, whatever changes appear to OFCOM

to have occurred, during that period, in the manner in which

those objectives are fulfilled, and

(d)   

set out OFCOM’s conclusions on the current state of material

included in media services.

20

(3)   

“The public service objectives” are the objectives set out in paragraphs

(b) to (j) of section 264(6) (as modified by subsection (4)).

(4)   

Paragraphs (b) to (j) of section 264(6) have effect for the purposes of

subsection (3) as if—

(a)   

references to the relevant television services were to media

25

services, and

(b)   

references to programmes were to material included in such

services.

(5)   

In this section—

“material” does not include advertisements;

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“media services” means any of the following services that are

available to members of the public in all or part of the United

Kingdom—

(a)   

television and radio services,

(b)   

on-demand programme services, and

35

(c)   

other services provided by means of the internet where

there is a person who exercises editorial control over the

material included in the service.

(6)   

The services that are to be taken for the purposes of this section to be

available to members of the public include any service which—

40

(a)   

is available for reception by members of the public (within the

meaning of section 361); or

(b)   

is available for use by members of the public (within the

meaning of section 368R(4)).”

 
 

Digital Economy Bill [HL]

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Online infringement of copyright

4       

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

5

(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

10

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.

15

(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

20

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

25

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

35

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—

40

(a)   

information about the apparent infringement may be kept by

the internet service provider;

 
 

Digital Economy Bill [HL]

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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

5

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

10

notification to the electronic or postal address held by the internet

service provider for the subscriber (and sections 394 to 396 do not

apply).”

5       

Obligation to provide infringement lists to copyright owners

After section 124A of the Communications Act 2003 insert—

15

“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

25

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

30

reports in relation to the subscriber; and

(b)   

the number of the reports has reached the threshold set in the

initial obligations code.”

6       

Approval of code about the initial obligations

After section 124B of the Communications Act 2003 insert—

35

“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

40

regulating the initial obligations; and

(b)   

that it would be appropriate for them to approve the code for

that purpose,

 
 

Digital Economy Bill [HL]

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they may by order approve it, with effect from the date given in the

order.

(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

5

under the copyright infringement provisions or the code to

apply in a particular case;

(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)

10

is met.

(4)   

The provision mentioned in subsection (3)(a) may, in particular, specify

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—

15

(a)   

the number of copyright infringement reports that the owner

may make to the provider within a particular period; and

(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,

20

provide that—

(a)   

except as provided by the code, rights and obligations do not

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

25

code;

(b)   

once the threshold is reached, rights or obligations apply in

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.

30

(7)   

Not more than one approved code may have effect at a time.

(8)   

OFCOM must keep an approved code under review.

(9)   

OFCOM may by order, at any time, for the purpose mentioned in

subsection (2)—

(a)   

approve modifications that have been made to an approved

35

code; or

(b)   

withdraw their approval from an approved code,

   

with effect from a date given in the order, 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

40

code or the modification of an approved code.

(11)   

An order made by OFCOM under this section approving a code or

modification must set out the code or modification.

(12)   

Section 403 applies to the power of OFCOM to make an order under

this section.

45

 
 

Digital Economy Bill [HL]

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(13)   

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.”

7       

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

10

initial obligations.

(2)   

OFCOM may but need not make a code under subsection (1) for a time

before the end of—

(a)   

the period of six months beginning with the day on which

sections 124A and 124B come into force, or

15

(b)   

such longer period as the Secretary of State may specify by

notice to OFCOM.

(3)   

The Secretary of State may give a notice under subsection (2)(b) only if

it appears to the Secretary of State that it is not practicable for OFCOM

to make a code with effect from the end of the period mentioned in

20

subsection (2)(a) or any longer period for the time being specified

under subsection (2)(b).

(4)   

A code under this section may do any of the things mentioned in

section 124C(3) to (5).

(5)   

A code under this section may also—

25

(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,

for the purposes of the code, of any other person;

(c)   

confer jurisdiction with respect to any matter on OFCOM

30

themselves (but this is subject to anything else in or under the

copyright infringement provisions that relates to appeals by

subscribers);

(d)   

provide for a person on whom jurisdiction is conferred to make

awards of compensation, to direct the reimbursement of costs,

35

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;

(f)   

make other provision for the enforcement of such awards and

directions; and

40

(g)   

make other provision for the purpose of regulating the initial

obligations.

(6)   

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

satisfied that it meets the criteria set out in section 124E.

(7)   

OFCOM must—

45

(a)   

keep a code under this section under review; and

 
 

Digital Economy Bill [HL]

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(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

section 124E.

(8)   

The consent of the Secretary of State is required for the making or

amendment by OFCOM of a code under this section.

5

(9)   

Section 403 applies to the power of OFCOM to make an order under

this section.

(10)   

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.”

10

8       

Contents of initial obligations code

After section 124D of the Communications Act 2003 insert— 

“124E   

 Contents of initial obligations code

(1)   

The criteria referred to in sections 124C(6) and 124D(6) are—

(a)   

that the code makes the required provision about copyright

15

infringement reports (see subsection (2));

(b)   

that it makes the required provision about the notification of

subscribers (see subsection (3));

(c)   

that it makes provision about how internet service providers are

to keep information about subscribers;

20

(d)   

that it limits the time for which they may keep that information;

(e)   

that it makes any provision about contributions towards

meeting costs that is required to be included by an order under

section 124L;

(f)   

that the requirements concerning enforcement and related

25

matters are met in relation to the code (see subsection (4));

(g)   

that the provisions of the code are objectively justifiable in

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

30

persons;

(i)   

that those provisions are proportionate to what they are

intended to achieve; and

(j)   

that, in relation to what those provisions are intended to

achieve, they are transparent.

35

(2)   

The required provision about copyright infringement reports is

provision that specifies—

(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;

40

(c)   

the required form of the report; and

(d)   

a time limit for making the report.

(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

45

infringement reports—

 
 

Digital Economy Bill [HL]

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(a)   

requirements as to the means by which the provider identifies

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

5

notification in each case.

(4)   

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;

10

(b)   

that any such other person is sufficiently independent of

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

15

providers, copyright owners and OFCOM; and

(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.

20

(5)   

The provision mentioned in subsection (4) may 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);

(b)   

provision requiring a copyright owner to indemnify an internet

25

service provider for any loss or damage resulting from the

owner’s failure to comply with the code or the copyright

infringement provisions.

(6)   

In this section—

“copyright infringement dispute” means a dispute that—

30

(a)   

is between one or more copyright owners, internet

service providers or subscribers; and

(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—

35

(a)   

a copyright infringement report;

(b)   

identification of the subscriber as a person in relation to

whom the report was made;

(c)   

retention by an internet service provider of details of an

alleged infringement; or

40

(d)   

inclusion of those details in a copyright infringement

list.”

 
 

 
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