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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A
Bill
[AS AMENDED ON REPORT]
To
Make provision about the functions of the Office of Communications; to make
provision about the online infringement of copyright, about licensing of
copyright and performers’ rights and about penalties for infringement; to
make provision about internet domain registries; to make provision about the
functions of the Channel Four Television Corporation; to make provision
about the regulation of television and radio services; to make provision about
the regulation of the use of the electromagnetic spectrum; to amend the Video
Recordings Act 1984; to make provision about public lending right in relation
to electronic publications; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
General duties of OFCOM
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General duties of OFCOM
(1)
Section 3 of the Communications Act 2003 (general duties of OFCOM) is
amended as follows.
(2)
After subsection (1) insert—
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“(1A)
In performing their duties under subsection (1), OFCOM must have
particular regard, in all cases, to the need—
(a)
to promote investment in electronic communications networks,
where appropriate;
(b)
to promote investment in public service media content, where
10
appropriate; and
(c)
for the investment to be efficient (taking account of the interests
of citizens and the interests of consumers in relevant markets).”

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Digital Economy Bill [HL]
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(3)
In subsection (2)(c) and (d), for “television and radio services” substitute
“media services”.
(4)
In subsection (4)(m), for “the furthering or securing of the matters mentioned
in subsections (1) and (2)” substitute “the furthering, promoting or securing of
the matters mentioned in subsections (1), (1A) and (2)”.
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(5)
In subsection (14), after the definition of “general duties” insert—
““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;
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(b)
on-demand programme services; and
(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;
“public service media content” means material, other than
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advertisements, which is included in media services and which
OFCOM consider contributes or may contribute towards the
fulfilment of the public service objectives (as defined in section
264A);”.
(6)
After that subsection insert—
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“(15)
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—
(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
25
meaning of section 368R(4)).”
2
OFCOM reports on infrastructure, internet domain names etc
(1)
In Chapter 1 of Part 2 of the Communications Act 2003 (electronic
communications networks and services), after section 134 insert—
“Reports on infrastructure etc
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134A
OFCOM reports on infrastructure etc
(1)
OFCOM must prepare reports in accordance with subsections (2) and
(3) and each report must deal with—
(a)
the electronic communications networks matters listed in
section 134B(1), and
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(b)
the electronic communications services matters listed in section
134B(2).
(2)
The first report must—
(a)
relate to the position on a day specified in the report which falls
within the period of 12 months beginning with the day on
40
which this section comes into force, and
(b)
be sent to the Secretary of State by OFCOM not more than 2
months after the specified day.
(3)
A further report must—

Digital Economy Bill [HL]
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(a)
be prepared for each relevant period, and
(b)
be sent to the Secretary of State by OFCOM as soon as
practicable after the end of the relevant period.
(4)
“Relevant period” means—
(a)
the period of 3 years beginning with the day specified in the first
5
report, and
(b)
each subsequent period of 3 years beginning with the end of the
previous period.
(5)
Where there is a significant change in connection with a matter listed in
section 134B(1) or (2) and OFCOM consider that the change should be
10
brought to the attention of the Secretary of State, OFCOM must—
(a)
prepare a report on the change, and
(b)
send it to the Secretary of State as soon as practicable.
(6)
For the purposes of subsection (5), a change is significant if OFCOM
consider that it has, or is likely to have, a significant adverse impact
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on—
(a)
persons carrying on business in the United Kingdom or a part
of the United Kingdom, or
(b)
the general public in the United Kingdom or a part of the United
Kingdom.
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(7)
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
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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.
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134B
Networks and services matters
(1)
For the purposes of section 134A, the electronic communications
networks matters are—
(a)
the different types of electronic communications network
provided in the United Kingdom (“UK networks”),
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(b)
the geographic coverage of the different UK networks,
(c)
the proportion of the population covered by the different UK
networks,
(d)
the extent to which UK networks share infrastructure,
(e)
the capacity of the different UK networks,
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(f)
the extent to which the providers of the different UK networks
allow other communications providers to use their networks to
provide services,
(g)
the amount of time for which the different UK networks are and
are not available, including the steps that have been or are to be
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taken to maintain or improve the level of availability,
(h)
the preparations made by providers of UK networks for
responding to an emergency, including preparations for

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restoring normal operation of UK networks disrupted by the
emergency, and
(i)
the standard of the different UK networks in comparison with
electronic communications networks provided in a range of
other countries, having regard, in particular, to their coverage
5
and capacity.
(2)
For the purposes of section 134A, the electronic communications
services matters are—
(a)
the use of the electromagnetic spectrum for wireless telegraphy
in the United Kingdom,
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(b)
the different types of electronic communications service
provided in the United Kingdom (“UK services”),
(c)
the geographic coverage of the different UK services,
(d)
the proportion of the population covered by the different UK
services,
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(e)
the amount of time for which the different UK services are and
are not available, including the steps that have been or are to be
taken to maintain or improve the level of availability,
(f)
the preparations made by providers of UK services for
responding to an emergency, including preparations for
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restoring normal operation of UK services disrupted by the
emergency, and
(g)
the standard of the different UK services in comparison with
electronic communications services provided in a range of other
countries.
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(3)
The preparations referred to in subsections (1)(h) and (2)(f) include—
(a)
the steps taken to assess the risks of different types of
emergency occurring,
(b)
the steps taken to reduce or remove those risks, and
(c)
the testing of proposed responses to different types of
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emergency.
(4)
In a report under section 134A, OFCOM are required to include only
information about, and analysis of, such networks, services and
providers as they consider appropriate.
(5)
In this section “emergency” means an event or situation that seriously
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disrupts a UK network or UK service.
Reports on internet domain names
134C
OFCOM reports on internet domain names
(1)
OFCOM must, if requested to do so by the Secretary of State—
(a)
prepare a report on matters specified by the Secretary of State
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relating to internet domain names, and
(b)
send the report to the Secretary of State as soon as practicable.
(2)
The specified matters may, in particular, include matters relating to—
(a)
the allocation and registration of internet domain names, and
(b)
the misuse of internet domain names.
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(3)
OFCOM must publish every report under this section—

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(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.
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(4)
OFCOM may exclude information from a report when it is published
under subsection (3) 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.”
(2)
In section 135(3) of that Act (information required for purposes of Chapter 1
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functions), after paragraph (ib) insert—
“(ic)
preparing a report under section 134A;
(id)
preparing a report under section 134C;”.
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OFCOM reports on media content
After section 264 of the Communications Act 2003 insert—
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“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
media services during that period (taken together over the period as a
whole) contributed towards the fulfilment of the public service
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objectives.
(2)
Every report under section 264 must—
(a)
include a report on the matters found on the review under this
section,
(b)
specify, and comment on, whatever changes appear to OFCOM
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to have occurred, during the period to which the report relates,
in the extent to which the public service objectives have been
fulfilled,
(c)
specify, and comment on, whatever changes appear to OFCOM
to have occurred, during that period, in the manner in which
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those objectives are fulfilled, and
(d)
set out OFCOM’s conclusions on the current state of material
included in media services.
(3)
“The public service objectives” are the objectives set out in paragraphs
(b) to (j) of section 264(6) (as modified by subsection (4)).
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(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
services, and
(b)
references to programmes were to material included in such
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services.
(5)
In this section—
“material” does not include advertisements;
“media services” means any of the following services that are
available to members of the public in all or part of the United
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Kingdom—

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(a)
television and radio services,
(b)
on-demand programme services, and
(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.
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(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—
(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
10
meaning of section 368R(4)).”
Online infringement of copyright
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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
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124A
Obligation to notify subscribers of copyright infringement reports
(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
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person to use the service, and that other person has infringed
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
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the owner to do so.
(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;
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(c)
includes evidence of the apparent infringement that shows the
subscriber’s IP address and the time at which the evidence was
gathered;
(d)
is sent to the internet service provider within the period of 1
month beginning with the day on which the evidence was
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gathered; and
(e)
complies with any other requirement of the initial obligations
code.
(4)
An internet service provider who receives a copyright infringement
report must notify the subscriber of the report if the initial obligations
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code requires the provider to do so.

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(5)
A notification under subsection (4) must be sent to the subscriber
within the period of 1 month beginning with the day on which the
provider receives the report.
(6)
A notification under subsection (4) must include—
(a)
a statement that it is sent under this section in response to a
5
copyright infringement report;
(b)
the name of the copyright owner who made the report;
(c)
a description of the apparent infringement;
(d)
evidence of the apparent infringement that shows the
subscriber’s IP address and the time at which the evidence was
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gathered;
(e)
information about subscriber appeals and the grounds on
which they may be made;
(f)
information about copyright and its purpose;
(g)
advice, or information enabling the subscriber to obtain advice,
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about how to obtain lawful access to copyright works;
(h)
advice, or information enabling the subscriber to obtain advice,
about steps that a subscriber can take to protect an internet
access service from unauthorised use; and
(i)
anything else that the initial obligations code requires it to
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include.
(7)
For the purposes of subsection (6)(h) the internet service provider must
take into account the suitability of different protection for subscribers
in different circumstances.
(8)
The things that may be required under subsection (6)(i), whether in
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general or in a particular case, include in particular—
(a)
a statement that information about the apparent infringement
may be kept by the internet service provider;
(b)
a statement that the copyright owner may require the provider
to disclose which copyright infringement reports made by the
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owner to the provider relate to the subscriber;
(c)
a statement that, following such a disclosure, the copyright
owner may apply to a court to learn the subscriber’s identity
and may bring proceedings against the subscriber for copyright
infringement; and
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(d)
where the requirement for the provider to send the notification
arises partly because of a report that has already been the
subject of a notification under subsection (4), a statement that
the number of copyright infringement reports relating to the
subscriber may be taken into account for the purposes of any
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technical measures.
(9)
In this section “notify”, in relation to a subscriber, means send a
notification to the electronic or postal address held by the internet
service provider for the subscriber (and sections 394 to 396 do not
apply).”
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