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

Digital Economy Bill [HL]


Digital Economy Bill [HL]

8

 

5       

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—

10

(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.

30

(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;

35

(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

45

 
 

Digital Economy Bill [HL]

9

 

(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,

20

   

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

 
 

Digital Economy Bill [HL]

10

 

(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—

10

(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,

15

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;

20

(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

25

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.”

 
 

Digital Economy Bill [HL]

11

 

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

5

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

10

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

15

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));

20

(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

35

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.

40

(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

45

the subscriber;

(b)   

which of the reports the provider must notify the subscriber of;

and

 
 

Digital Economy Bill [HL]

12

 

(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

5

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;

10

(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

15

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—

20

(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.

35

(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.”

40

9       

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

45

services.

 
 

Digital Economy Bill [HL]

13

 

(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—

5

(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

10

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

15

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;

25

(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

35

(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.

40

(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

45

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

 
 

Digital Economy Bill [HL]

14

 

could refuse to disclose in response to a request under the Freedom of

Information Act 2000.”

10      

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.

15

(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;

20

(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.

25

(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;

30

(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

35

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.

 
 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2010
Revised 9 March 2010