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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Obligation to provide infringement lists to copyright owners
After section 124A of the Communications Act 2003 insert—
“124B
Obligation to provide copyright infringement lists to copyright
owners
(1)
An internet service provider must provide a copyright owner with a
5
copyright infringement list for a period if—
(a)
the owner requests the list for that period; and
(b)
an initial obligations code requires the internet service provider
to provide it.
(2)
A “copyright infringement list” is a list that—
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(a)
sets out, in relation to each relevant subscriber, which of the
copyright infringement reports made by the owner to the
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
15
and an internet service provider if copyright infringement reports
made by the owner to the provider in relation to the subscriber have
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—
20
“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
25
regulating the initial obligations; and
(b)
that it would be appropriate for them to approve the code for
that purpose,

they may by order approve it, with effect from the date given in the
order.
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(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
under the copyright infringement provisions or the code to
apply in a particular case;
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(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)
is met.
(4)
The provision mentioned in subsection (3)(a) may, in particular, specify
40
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—
(a)
the number of copyright infringement reports that the owner
may make to the provider within a particular period; and
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(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,
provide that—
(a)
except as provided by the code, rights and obligations do not
5
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 in the code;
and
(b)
if the threshold is reached, rights or obligations apply with
10
effect from the date when it is reached or from a later time.
(6)
OFCOM must not approve a code under this section unless satisfied
that it meets the criteria set out in section 124E.
(7)
Not more than one approved code may have effect at a time.
(8)
OFCOM must keep an approved code under review.
15
(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
code; or
(b)
withdraw their approval from an approved code,
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with effect from the 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
code or the modification of an approved code.
(11)
An order made by OFCOM under this section approving a code or
25
modification must set out the code or modification.
(12)
Section 403 applies to the power of OFCOM to make an order under
this section.
(13)
A statutory instrument containing an order made by OFCOM under
this section is subject to annulment in pursuance of a resolution of
30
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—
“124D
Initial obligations code by OFCOM in the absence of an approved
code
35
(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
initial obligations.
(2)
OFCOM may but need not make a code under subsection (1) for a time
40
before the end of—
(a)
the period of six months beginning with the day on which
sections 124A and 124B come into force, or

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(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
5
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—
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(a)
confer jurisdiction with respect to any matter (other than
jurisdiction to determine appeals by subscribers) on OFCOM
themselves;
(b)
provide for OFCOM, in exercising such jurisdiction, to make
awards of compensation, to direct the reimbursement of costs,
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or to do both;
(c)
provide for OFCOM to enforce, or to participate in the
enforcement of, any awards or directions made under the code;
(d)
make other provision for the enforcement of such awards and
directions;
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(e)
establish a body corporate, with the capacity to make its own
rules and establish its own procedures, for the purpose of
determining subscriber appeals;
(f)
provide for a person with the function of determining
subscriber appeals to enforce, or to participate in the
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enforcement of, any awards or directions made by the person;
(g)
make other provision for the enforcement of such awards and
directions; and
(h)
make other provision for the purpose of regulating the initial
obligations.
30
(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—
(a)
keep a code under this section under review; and
(b)
by order make any amendment of it that is necessary to ensure
35
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.
(9)
Section 403 applies to the power of OFCOM to make an order under
40
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.”

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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
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infringement reports (see subsection (2));
(b)
that it makes the required provision about the notification of
subscribers (see subsections (3) and (4));
(c)
that it sets the threshold applying for the purposes of
determining who is a relevant subscriber within the meaning of
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section 124B(3) (see subsections (5) and (6));
(d)
that it makes provision about how internet service providers are
to keep information about subscribers;
(e)
that it limits the time for which they may keep that information;
(f)
that it makes any provision about contributions towards
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meeting costs that is required to be included by an order under
section 124M;
(g)
that the requirements concerning administration and
enforcement are met in relation to the code (see subsections (7)
and (8));
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(h)
that the requirements concerning subscriber appeals are met in
relation to the code (see section 124K);
(i)
that the provisions of the code are objectively justifiable in
relation to the matters to which it relates;
(j)
that those provisions are not such as to discriminate unduly
25
against particular persons or against a particular description of
persons;
(k)
that those provisions are proportionate to what they are
intended to achieve;
(l)
that, in relation to what those provisions are intended to
30
achieve, they are transparent; and
(m)
that takes into account circumstances whereby injunctions
under section 97B as inserted by section 18 of the Digital
Economy Act 2010 may be brought.
(2)
The required provision about copyright infringement reports is
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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; and
(c)
the required form of the report.
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(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
infringement reports—
(a)
requirements as to the means by which the provider identifies
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the subscriber;
(b)
which of the reports the provider must notify the subscriber of;
and

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(c)
requirements as to the form, contents and means of the
notification in each case.
(4)
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
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be taken into account for the purposes of the notification.
(5)
The threshold applying in accordance with subsection (1)(c) may,
subject to subsection (6), be set by reference to any matter, including in
particular one or more of—
(a)
the number of copyright infringement reports;
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(b)
the time within which the reports are made;
(c)
the time of the apparent infringements to which they relate; and
(d)
any other matter.
(6)
The threshold applying in accordance with subsection (1)(c) must
operate in such a way that a copyright infringement report received by
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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.
(7)
The requirements concerning administration and enforcement are—
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(a)
that OFCOM have, under the code, the functions of
administering and enforcing it, including the function of
resolving owner-provider disputes; and
(b)
that there are adequate arrangements under the code for the
costs incurred by OFCOM in administering and enforcing the
25
code to be met by internet service providers and copyright
owners.
(8)
The provision mentioned in subsection (7) 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
30
being specified in section 124L(2);
(b)
provision requiring a copyright owner to indemnify an internet
service provider for any loss or damage resulting from the
owner’s failure to comply with the code or the copyright
infringement provisions.
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(9)
In this section “owner-provider dispute” means a dispute that—
(a)
is between persons who are copyright owners or internet
service providers; and
(b)
relates to an act or omission in relation to an initial obligation or
the initial obligations code.”
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Progress reports
After section 124E of the Communications Act 2003 insert—
“124F
Progress reports
(1)
OFCOM must prepare the following reports for the Secretary of State
about the infringement of copyright by subscribers to internet access
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services.

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(2)
OFCOM must prepare a full report for—
(a)
the period of 12 months beginning with the first day on which
there is an initial obligations code in force; and
(b)
each successive period of 12 months.
(3)
OFCOM must prepare an interim report for—
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(a)
the period of 3 months beginning with the first day on which
there is an initial obligations code in force; and
(b)
each successive period of 3 months, other than one ending at the
same time as a period of 12 months under subsection (2).
But this is subject to any direction by the Secretary of State under
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subsection (4).
(4)
The Secretary of State may direct that subsection (3) no longer applies,
with effect from the date given in the direction.
(5)
A full report under this section must include—
(a)
an assessment of the current level of subscribers’ use of internet
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access services to infringe copyright;
(b)
a description of the steps taken by copyright owners to enable
subscribers to obtain lawful access to copyright works;
(c)
a description of the steps taken by copyright owners to inform,
and change the attitude of, members of the public in relation to
20
the infringement of copyright;
(d)
an assessment of the extent of the steps mentioned in
paragraphs (b) and (c);
(e)
an assessment of the extent to which copyright owners have
made copyright infringement reports;
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(f)
an assessment of the extent to which they have brought legal
proceedings against subscribers in relation to whom such
reports have been made;
(g)
an assessment of the extent to which any such proceedings have
been against subscribers in relation to whom a substantial
30
number of reports have been made; and
(h)
anything else that the Secretary of State directs OFCOM to
include in the report.
(6)
An interim report under this section must include—
(a)
the assessments mentioned in subsection (5)(a), (e) and (f); and
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(b)
anything else that the Secretary of State directs OFCOM to
include in the report.
(7)
OFCOM must send a report prepared under this section to the
Secretary of State as soon as practicable after the end of the period for
which it is prepared.
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(8)
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
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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

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could refuse to disclose in response to a request under the Freedom of
Information Act 2000.”
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Obligations to limit internet access: assessment and preparation
After section 124F of the Communications Act 2003 insert—
“124G
Obligations to limit internet access: assessment and preparation
5
(1)
The Secretary of State may direct OFCOM to—
(a)
assess whether one or more technical obligations should be
imposed on internet service providers;
(b)
take steps to prepare for the obligations;
(c)
provide a report on the assessment or steps to the Secretary of
10
State.
(2)
A “technical obligation”, in relation to an internet service provider, is an
obligation for the provider to take a technical measure against some or
all relevant subscribers to its service for the purpose of preventing or
reducing infringement of copyright by means of the internet.
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(3)
A “technical measure” is a measure that—
(a)
limits the speed or other capacity of the service provided to a
subscriber;
(b)
prevents a subscriber from using the service to gain access to
particular material, or limits such use;
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(c)
suspends the service provided to a subscriber; or
(d)
limits the service provided to a subscriber in another way.
(4)
A subscriber to an internet access service is “relevant” if the subscriber
is a relevant subscriber to the service, within the meaning of section
124B(3), in relation to one or more copyright owners.
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(5)
The assessment and steps that the Secretary of State may direct
OFCOM to carry out or take under subsection (1) include, in
particular—
(a)
consultation of copyright owners, internet service providers,
subscribers or any other person;
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(b)
an assessment of the likely efficacy of a technical measure in
relation to a particular type of internet access service; and
(c)
steps to prepare a proposed technical obligations code.
(6)
Internet service providers and copyright owners must give OFCOM
any assistance that OFCOM reasonably require for the purposes of
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complying with any direction under this section.
(7)
The Secretary of State must lay before Parliament any direction under
this section.
(8)
OFCOM must publish every report under this section—
(a)
as soon as practicable after they send it to the Secretary of State,
40
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.