Digital Economy Bill [HL]
REVISED
SECOND
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
ON REPORT
The amendments have been marshalled in accordance with the Order of 25th February 2010, as follows—
Clauses 8 to 41
Schedule 1
Clause 42
Schedule 2 | Clauses 43 to 46
Schedule 3
Clauses 47 to 49 |
[Amendments marked * are new or have been altered]
Amendment
No.
| 54 | Page 10, line 35, at end insert— |
| "( ) | that the code makes provision to ensure subscribers do not incur any cost in meeting their obligations under section 124A;" |
| 54A* | Page 10, line 35, at end insert— |
| "( ) | that takes into account circumstances whereby injunctions under section 97B as inserted by section (Preventing access to specified online locations for the prevention of online copyright infringement) of the Digital Economy Act 2010 may be brought" |
| 55 | Page 10, line 40, at end insert "and" |
| 56 | Page 10, line 41, leave out from "report" to end of line 42 |
| | BARONESS MILLER OF CHILTHORNE DOMER |
| 57 | Page 11, line 6, at end insert— |
| "( ) | an indication of whether or not it is alleged that the subscriber obtained financial or commercial gain from the alleged copyright infringement" |
| 58 | Page 11, line 6, at end insert— |
| "(3A) | The provision mentioned in subsection (3) must not permit any copyright infringement report received by an internet service provider more than 12 months before the date of a notification of a subscriber to be taken into account for the purposes of the notification. |
| (3B) | The threshold applying in accordance with subsection (1)(ba) may, subject to subsection (3C), be set by reference to any matter, including in particular one or more of— |
| (a) | the number of copyright infringement reports; |
| (b) | the time within which the reports are made; |
| (c) | the time of the apparent infringements to which they relate; and |
| (3C) | The threshold applying in accordance with subsection (1)(ba) must operate in such a way that a copyright infringement report received by an internet service provider more than 12 months before a particular date does not affect whether the threshold is met on that date; and a copyright infringement list provided under section 124B must not take into account any such report." |
| 59 | Page 11, line 7, leave out "enforcement and related matters" and insert "administration and enforcement" |
| 60 | Page 11, line 8, leave out "or another person has" and insert "have" |
| 61 | Page 11, line 10, leave out "copyright infringement" and insert "owner-provider" |
| 62 | Page 11, line 11, leave out from beginning to "; and" in line 16 |
| 63 | Page 11, line 18, leave out from "costs" to "the" in line 19 and insert "incurred by OFCOM in administering and enforcing" |
| 64 | Page 11, line 30, leave out ""copyright infringement" and insert ""owner-provider" |
| 65 | Page 11, line 31, leave out from "between" to "; and" in line 32 and insert "persons who are copyright owners or internet service providers" |
| 66 | Page 11, leave out lines 35 to 42 |
| 67 | Page 12, line 15, at end insert— |
| | "But this is subject to any direction by the Secretary of State under subsection (3A). |
| (3A) | The Secretary of State may direct that subsection (3) no longer applies, with effect from the date given in the direction." |
| 68 | Page 12, line 18, at end insert— |
| "( ) | an assessment of the level of subscribers' use of internet access services to obtain legal access to copyright material;" |
| 69 | Page 12, line 18, at end insert— |
| "( ) | an assessment of the current level of subscribers' use of internet access services to obtain lawful access to copyright works;" |
| 70 | Page 12, line 20, at end insert ", including, in particular, co-operation with internet service providers and with the creators of copyright material, and an assessment of the effectiveness of those steps" |
| 71 | Page 12, line 20, at end insert— |
| "( ) | a description of the steps taken by copyright owners to ensure that the creators of copyright material benefit fully from the opportunities to market it in electonic form;" |
| 72 | Page 12, line 42, at end insert— |
| "(7) | OFCOM must publish every full report under this section— |
| (a) | as soon as practicable after they send it to the Secretary of State, and |
| (b) | in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it. |
| (8) | OFCOM may exclude information from a report when it is published under subsection (7) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000." |
| 73 | Page 13, line 5, leave out "should" and insert "might" |
| 74 | Page 13, line 12, at end insert "for the purpose of preventing or reducing infringement of copyright by means of the internet" |
| 75 | Page 13, line 31, after "providers" insert "and copyright owners" |
| | BARONESS MILLER OF CHILTHORNE DOMER |
| 76 | Page 13, line 33, at end insert— |
| "( ) | Where a relevant subscriber has taken the precautions required under the initial obligations code to prevent a third party using that subscriber's address without permission, this shall be deemed "reasonable steps", and provides the subscriber with a prima facie defence against an internet service provider taking technical measures against them." |
| 77 | Page 13, line 35, at end insert— |
| "(8) | OFCOM must publish every report under this section— |
| (a) | as soon as practicable after they send it to the Secretary of State, and |
| (b) | in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it. |
| (9) | OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000." |
| 78 | Page 13, line 39, at beginning insert "If the Secretary of State believes necessary, having regard to the progress reports under section 124E," |
| 79 | Page 13, line 39, leave out "at any time" |
| 80 | Page 13, line 39, after "time" insert "after having received OFCOM's first full report under section 124F" |
| | BARONESS MILLER OF CHILTHORNE DOMER |
| 81 | Page 13, line 40, after "providers" insert "in relation to online copyright infringement" |
| 82 | Page 13, line 40, leave out from "if" to end of line 44 and insert "— |
| (a) | OFCOM have assessed whether one or more technical obligations should be imposed on internet service providers; and |
| (b) | taking into account that assessment, reports prepared by OFCOM under section 124F, and any other matter that appears to the Secretary of State to be relevant, the Secretary of State considers it appropriate to make the order. |
| ( ) | No order may be made under this section within the period of 12 months beginning with the first day on which there is an initial obligations code in force." |
| | BARONESS MILLER OF CHILTHORNE DOMER |
| 83 | Page 14, line 1, leave out from "section" to end of line 2 and insert "may not be made by the Secretary of State unless— |
| (a) | the Secretary of State has laid a draft order and explanatory document before Parliament in accordance with section 302B; and |
| (b) | the order is made in accordance with the super-affirmative procedure" |
| 84 | Page 14, leave out lines 4 and 5 |
| 85 | Page 14, line 22, leave out "(f)" and insert "(fa)" |
| 86 | Page 15, line 6, at end insert— |
| "(aa) | that the requirements concerning subscriber appeals are met in relation to the code (see section 124JA);" |
| 87 | Page 15, line 16, at end insert— |
| "( ) | that those provisions do not have a significant adverse effect on legitimate users;" |
| 88 | Page 15, line 22, leave out "or another person has" and insert "have" |
| 89 | Page 15, line 24, leave out "copyright infringement" and insert "owner-provider" |
| 90 | Page 15, leave out lines 25 to 30 and insert "and" |
| 91 | Page 15, line 32, leave out from "costs" to "the" in line 33 and insert "incurred by OFCOM in administering and enforcing" |
| 92 | Page 15, line 34, leave out "and" |
| 93 | Page 15, line 35, leave out from beginning to "may" in line 6 on page 16 and insert— |
| "(4) | The provision made concerning enforcement and related matters" |
| 94 | Page 16, leave out lines 15 to 18 |
| | BARONESS MILLER OF CHILTHORNE DOMER |
| 95 | Page 16, line 19, after "section" insert "and section 124JA" |
| 96 | Page 16, line 20, leave out "copyright infringement" and insert "owner-provider" |
| 97 | Page 16, line 21, leave out from "between" to "; and" in line 22 and insert "persons who are copyright owners or internet service providers" |
| 98 | Page 16, leave out lines 25 to 28 |
| | BARONESS MILLER OF CHILTHORNE DOMER |
| 99 | Page 16, leave out lines 26 to 28 and insert— |
| "( ) | the validity of a notification received and its compliance with the criteria set out under sections 124A and 124E, and |
| ( ) | the conduct of right owners or internet service providers and their compliance with the criteria set out in sections 124A and 124E" |
| 100 | Insert the following new Clause— |
| | After section 124J of the Communications Act 2003 insert— |
| (1) | The requirements concerning subscriber appeals are— |
| (a) | for the purposes of section 124E(1)(fa), the requirements of subsections (2) to (8); and |
| (b) | for the purposes of section 124J(1)(aa), the requirements of subsections (2) to (11). |
| (2) | The requirements of this subsection are— |
| (a) | that the code confers on subscribers the right to bring a subscriber appeal and, in the case of a technical obligations code, a further right of appeal to the First-tier Tribunal; |
| (b) | that there is a person who, under the code, has the function of determining subscriber appeals; |
| (c) | that that person is for practical purposes independent (so far as determining subscriber appeals is concerned) of internet service providers, copyright owners and OFCOM; |
| (d) | that there are adequate arrangements under the code for the costs incurred by that person in determining subscriber appeals to be met by internet service providers, copyright owners and the subscriber concerned. |
| (3) | The code must provide for the grounds of appeal (so far as an appeal relates to, or to anything done by reference to, a copyright infringement report) to include the following— |
| (a) | that the apparent infringement to which the report relates was not an infringement of copyright; |
| (b) | that the report does not relate to the subscriber's IP address at the time of the apparent infringement. |
| (4) | The code must provide for the grounds of appeal to include contravention by the copyright owner or internet service provider of the code or of an obligation regulated by the code. |
| 33 | (5) The code must provide that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that, as respects any copyright infringement report to which the appeal relates or by reference to which anything to which the appeal relates was done— |
| (a) | the apparent infringement was an infringement of copyright, and |
| (b) | the report relates to the subscriber's IP address at the time of that infringement. |
| (6) | The code must provide that, where a ground mentioned in subsection (3) is relied on, the appeal must be determined in favour of the subscriber if the subscriber shows that— |
| (a) | the act constituting the apparent infringement to which the report relates was not done by the subscriber, and |
| 4749 | (b) the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service. |
| (7) | The powers of the person determining subscriber appeals must include power— |
| 5255 | (a) to secure so far as practicable that a subscriber is not prejudiced for the purposes of the copyright infringement provisions by an act or omission in respect of which an appeal is upheld; |
| (b) | to make an award of compensation to be paid by a copyright owner or internet service provider to a subscriber affected by such an act or omission; and |
| (c) | where the appeal is determined in favour of the subscriber, to direct the copyright owner or internet service provider to reimburse the reasonable costs of the subscriber. |
| (8) | The code must provide that the power to direct the reimbursement of costs under subsection (7)(c) is to be exercised to award reasonable costs to a subscriber whose appeal is successful, unless the person deciding the appeal is satisfied that it would be unjust to give such a direction having regard to all the circumstances including the conduct of the parties before and during the proceedings. |
| 69 | (9) In the case of a code under section 124I, the powers of the person determining subscriber appeals must include power— |
| (a) | on an appeal in relation to a technical measure or proposed technical measure— |
| (i) | to confirm the measure; |
| (ii) | to require the measure not to be taken or to be withdrawn; |
| (iii) | to substitute any other technical measure that the internet service provider has power to take; |
| (b) | to exercise the power mentioned in paragraph (a)(ii) or (iii) where an appeal is not upheld but the person determining it is satisfied that there are exceptional circumstances that justify the exercise of the power; |
| (c) | to take any steps that OFCOM could take in relation to the act or omission giving rise to the technical measure; and |
| (d) | to remit the decision whether to confirm the technical measure, or any matter relating to that decision, to OFCOM. |
| (10) | In the case of a code under section 124I, the code must make provision— |
| (a) | enabling a determination of a subscriber appeal to be appealed to the First-tier Tribunal, including on grounds that it was based on an error of fact, wrong in law or unreasonable; |
| (b) | giving the First-tier Tribunal power, in relation to an appeal to it, the powers mentioned in subsections (7) and (9); and |
| (c) | in relation to recovery of costs awarded by the Tribunal. |
| (11) | In the case of a code under section 124I, the code must include provision to secure that a technical measure is not taken against a subscriber until— |
| (a) | the period for bringing a subscriber appeal, or any further appeal to the First-tier Tribunal, in relation to the proposed measure has ended (or the subscriber has waived the right to appeal or abandoned any appeal); and |
| 103 | (b) any such subscriber appeal or further appeal has been determined or otherwise disposed of."" |
| | BARONESS MILLER OF CHILTHORNE DOMER |
| | [Amendments 101 to 104 are amendments to Amendment 100] |
| 101 | Leave out lines 33 to 49 and insert— |
| "(5) | The code must provide that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that, as respects any copyright infringement report to which the appeal relates or by reference to which anything to which the appeal relates was done— |
| (a) | the apparent infringement was an infringement of copyright; |
| (b) | the report relates to the subscriber's IP address at the time of that infringement; |
| (c) | the subscriber has not taken reasonable steps to prevent other persons infringing copyright by means of the internet access service, or the apparent infringement had been carried out by the subscriber, or they had authorised or connived such infringement being carried out by another; and |
| (d) | that the standard of evidence underlining the notification complies with the standard set out in the initial obligations code, as determined by the criteria set out in section 124E(1) and (2)." |
| 102 | Line 47, after "steps" insert ", or all those steps appropriate to the subscriber's circumstances advised by OFCOM," |
| | BARONESS MILLER OF CHILTHORNE DOMER |
| 103 | Leave out lines 52 to 55 |
| 104 | Leave out lines 69 to 103 and insert— |
| "( ) | Technical measures shall only be applied against a subscriber following a finding by the court that they have infringed copyright by means of an internet access service and such court shall have power to— |
| | the implementation of a proposed technical measure." |
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