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I therefore share the noble Lord's hope that the number of court cases against individuals,especially the number of threatened court cases that he mentioned,

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will be significantly reduced. However, the reduction should be a natural consequence of the successful implementation of this part, not a result of our having imposed a legislative block on rights holders.

Viscount Bridgeman: My Lords, I must declare an interest, as my wife has a photographic archive and manages a collecting society. This is of more relevance to later stages of the Bill, but I declare it now for the record.

I agree with my noble friend Lord Howard that we cannot agree with the amendment of the noble Lord, Lord Razzall, although we support his sentiments. The amendment, which proposes a system of two warnings and then a throttle, is in danger of assuming that the rights owner is a corporation with deep pockets. It must not prevent individual creators taking action against unauthorised online use of their work.

Lord Mitchell: My Lords, like the noble Earl, Lord Erroll, I may be in danger of saying something that applies to other amendments as well, but since this is the very beginning of the debate on file-sharing, perhaps I may make my points now and return to them later.

One of the things that I do is go round schools and talk to young children about general business ethics. We talk about all sorts of things that people should and should not do in the business workplace. When we come to summing-up time, I always ask how many of them steal-I do not ask them to raise their hands; I just ask them to talk on the subject of stealing. Of course, they all say that they do not steal. We then come on to illegal file-sharing and downloading of music, movies and so on, which, of course, every single child in this country is doing-you would be hard pressed to find any person under the age of 25 who is not illegally downloading. We should face up to that issue. We will talk today about legislation that will preclude this, and fines and all sorts of people becoming involved. There is a huge danger here. A huge group of our people are doing something that they do not think is wrong or a crime. It is dangerous for us to be putting into effect legislation that puts a whole lot of people in a criminal situation when they do not think that they are committing a crime.

One interesting thing: this is the time when people are voting on the movies that are going to win BAFTA awards and the Oscars in America. I know for a fact that some of the films on which voting has occurred have already been uploaded to the internet and are being downloaded. There is no question that this is a tremendous problem. To young people, the big film and music companies are often seen as the enemy, as bodies which have charged exorbitant prices for their products over time, so there is no sense of guilt about downloading. This is something we should think about in our deliberations this evening.

Lord Lucas: I agree with what the noble Lord, Lord Mitchell, has just said. We have to be careful about setting out to criminalise, as he says, a large proportion of our population, particularly when it involves putting them not in the hands of the criminal law with all the safeguards, care and rationality that involves, but in the hands of firms of solicitors who are out to make a

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buck from the process. None of these people is nice to deal with. Even where the majors have been involved in prosecutions-there are not many cases of that-they are relentless. It is not at all nice to be on the receiving end of one of their prosecutions. They can take a long time, cost a great deal of money and go on, with unspecified consequences, for a period of years. It is not like a parking fine or some simple, reasonable but reasonably painful financial consequence of wrong-doing. This is putting people into the civil justice system with civil levels of proof. We should be careful about doing that and the circumstances in which we do it.

ACS Law, one of the firms involved in this, has been kind enough to write to me. Its technique is to send out letters saying that it has evidence that a breach of copyright has been committed and demanding a few hundred pounds in recompense. The difficulty is that the evidence has usually been provided by a company abroad that does not disclose the methods by which it has been obtained. It may well have been obtained against data protection rules-that is certainly the conclusion that the Swiss and French authorities seem to have reached. It is anyway totally impenetrable. You receive one of these things saying that you have done wrong and owe money. How on earth do you disprove it? Without spending a great deal of time and money, you have no means of showing this company that you do not owe them what they say. I think most of their income comes from people who just pay. I am not aware that there have been many court cases at the end of this because of the element of bluff.

This seems a disreputable thing to wish upon our citizens. We should be careful in this Bill that we are not going to multiply what is going on at the moment. If we can, we ought to seek to avoid that. We ought to produce something civilised, aimed-as is much of the first bit of Clauses 4 to 17-at education and persuasion, and where at the end of the day there is due process and reasonableness in the consequences for our citizens.

I have a great deal of sympathy for this amendment. However, it perhaps should not be the right to prosecute that we try to remove, but the right to obtain information about who has been doing wrong; in other words, the right to users' names and addresses. Since that process is so wound up in what the Government are proposing, perhaps we ought to make that exclusive so that in order to obtain it, copyright owners have to go through the processes in the Bill.

It will be difficult to get this balancing act right, and I do not pretend that I have an instant answer to this but, returning to what the noble Lord, Lord Mitchell, said, we should be very careful about what we are doing to our citizens, because these are not nice people to fall foul of. The methods that they use to extract money are not nice, and I do not mean just the fringe operators. That applies to dealing with a difficult-to-refute allegation in the civil justice system. What the noble Lord, Lord Razzall, proposes in the amendment seems to have a pretty good basis.

4.30 pm

Baroness Miller of Chilthorne Domer: I support what the noble Lord, Lord Lucas, said, and my noble friend's amendment. I am glad that we are having this

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debate. What would help me in considering whether we are likely to be able to strike any sort of balance between the rights of the citizen to know exactly how the evidence was obtained and what they are facing is if the Minister could say a little more about how copyright holders will obtain that evidence. What technical methods will they use to get the evidence that people have been file-sharing? I appreciate that it is a fairly technical question but-in order that people can understand whether there is any evidence against them and whether their name is on the list erroneously, and so on-it is reasonable to lay out, at least before this Committee, how copyright holders will get that evidence. What technical method will they use? If the Minister can explain that in layman's terms, it would be very helpful.

Lord Triesman: Perhaps I may start with an apology. I was unable to attend Second Reading, and I know that it is unconventional for those who have not done so then to speak in Committee. However, I spoke to the House authorities and explained that I was at the draw for the World Cup in South Africa-an event which I celebrate. It was a duty imposed on me.

Lord Lucas: May I offer the noble Lord my congratulations on the result of that draw?

Lord Triesman: I thank the noble Lord. If I had any influence on the draw, I would readily accept those congratulations. However, it is true to say that it was a happy draw.

I declare an interest as chairman of the FA, because football rights holders are among the rights holders that are affected. However, this is an opportunity to reflect on the period of approximately eight months when I was Minister with responsibility for intellectual property in the short-lived DIUS, when I was routinely confronted by the debate between those who believed that everything should in a sense be free because technology had made that possible, and those who were unable to generate the economic activity that many of our new and most innovative industries are capable of generating. As was said in the Second Reading debate, which I read, they are a significant and growing part of our economy. That was of great significance when I had that responsibility because it is clear that, broadly speaking, as a nation, we will not make our living digging things out of the ground or beating on metal to any extent. We will make it out of our innovation, our inventiveness and our being at the front edge of what we are capable of achieving. That is why I want to reflect on the comments made by the noble Lords, Lord Mitchell and Lord Lucas.

Many will say that vast numbers of people break this law-I was presented with copious evidence of it-and ask whether it is practical to intervene without unwanted consequences, or say that there will be those in the legal profession and elsewhere who will exploit this law. The temptation when you hear such arguments, with the greatest respect, is to put it all in the box which says "too difficult". There is a cultural propensity to say that these are all big corporations which have made a fortune over the years, so there is something vaguely picaresque about stealing from them now. But

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the truth is that if we really value the innovative structure that is a great capability of this country's economy, then there need to be proportionate means of trying to deal with this.

First, not everybody who steals a file on their computer is a 16 year-old who wants one song. We found huge evidence that many people not only download material; you can find in car boot sales and market stalls vast quantities of material that has been stolen and downloaded, frequently associated with illegal immigrants taking part in the marketing of it. I say this not to paint a lurid picture but because the coming together of these different kinds of criminal activities should be of significance to us, and also because it is a very significant criminal activity. One of the reasons why trading standards officers and others have been invited to try to make London fake-free by the time the Olympics take place in 2012 is that those who are pursuing this activity with considerable success are not just youngsters but people with a much more serious criminal intent.

In the case of football, people do not always regard the output as intellectual property. None the less, it is a very serious product in a very serious industry which is sold with huge success worldwide, and its economic model is dependent on doing that. I sincerely applaud, for example, the FA Premier League for making one of the great world export products which is one of the huge successes of this country. In the case of my own organisation, the FA, we are a not-for-profit organisation. The money that we make by selling those properties is the money that goes into grass-roots football in every park and small stadium and into the opportunities that we can offer to youngsters to get them into a sport and off the couch and away from the television-and occasionally, one hopes, away from their computers and stealing files.

All of this suggests that the response needs to be genuinely robust. I think that the response in the Bill is genuinely robust and strikes a helpful balance. However, in the final analysis, it would be wholly inappropriate to deny people the opportunity to seek by legal means to prevent people stealing their property. Difficult as it may be for some youngsters to see it as theft, it is interesting-I do not know whether the noble Lord on the Front Bench has had this experience since taking up ministerial responsibility-that when you went to schools and discussed it with rather younger children, they understood it instantly. They understood that if they really wanted to hear that kind of music in the future-music of the indie bands and others who were being driven out of doing what they do in the creative industries in this country-they needed to change what they did. It needs a long-stop, and that long-stop is vital to music, to film, to sport and to very many other sectors. Those are the sectors that are the future of our economy.

Lord Birt: My Lords, in following the noble Lord, Lord Triesman, perhaps I may remind your Lordships of the interests I declared during the Second Reading debate. I well recognise, as will everyone here, the perception so eloquently outlined by the noble Lords, Lord Razzall, Lord Mitchell, and others, but perhaps I may say respectfully that while this House may

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understand it, it should not condone for a moment that perception. Because much of the content on the internet is free, it does not follow that all the content should be free. The theft of an electronic good has an exact moral equivalence with the theft of a physical good. No one in the House would condone the theft of a CD, a DVD or a newspaper from a stall. We simply have to end a perception that is at the heart of the difficulties increasingly faced by the creative industries. This is not a threat of the future, but one of the present and the recent past. There is no major creative industry, either in this country or in other places, that has not been massively and adversely affected by the scale of this theft.

I remind your Lordships that the best evidence we have shows that something like half of all internet activity is tied up with copyright theft. We are not talking about some minor problem, but a massive threat not just to any industry, but to one that is a critical part of our national cultural life and, although people always find it hard to believe, one of massive economic importance. In this city alone the creative industries taken as a whole are bigger than the financial services industry. So copyright theft has enormous economic and cultural implications, and let us not dodge the issue that it matters that large numbers of young people think that such theft is okay. They should not think that, and this legislation offers a proportionate framework for dealing with it.

Questions have been asked about the technology. It is not all that complicated. The only person who is going to be captured by this legislation is someone who freely offers on the internet at an identified moment in time-we know exactly where they are coming from, so to speak-material that it is unlawful to provide. They are not sent to jail the next day, but go through a long, complex and well-considered process, at the end of which the main sanction is that they are cut off from the internet. That is a proportionate response to a massive problem.

The Earl of Erroll: Perhaps I may challenge one of the statistics used by the noble Lord. He said that 50 per cent of internet content is made up of unlawful file-sharing. I, too, saw that statistic, which was put out by one of the consumer groups. We are also told that 80 per cent of internet traffic is spam, where people try to sell all sorts of medication to boost your life in older age, phishing and various other things. I find that none of these statistics adds up, so we should be very wary of quoting any of them.

Lord Birt: I hope that the phrase I used was "best evidence". The best evidence comes from Sweden. On the day that the internet-using community in Sweden first faced the prospect of similar legislation, if my memory serves me correctly, internet traffic dropped by 50 per cent. The figure is supported by other work, but that is the main piece of evidence of which I am personally aware.

Lord Maxton: My Lords, perhaps I may say briefly that this is a problem and I accept, even as a Scotsman, that the noble Lord, Lord Triesman, has a point about sports rights. However, looking into the future, you wonder how accurate it will be. I wonder whether

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Manchester United, with a fan base right around the world, is going to put up with being limited just to the rights sold by the Premier League when it could probably sell its own product for a higher price or get more money from it. But that is another matter.

The fact is that the music industry and the audio side have attempted to deal with the problem in ways that are not legally prescriptive. It has tried to do it by micro payment, which means that you pay only a small sum for the piece of music you want, not for a whole CD, while performers are now beginning to sell their product straight on to the internet to be purchased by youngsters. That may encourage them to go out and buy the CD. Further, I gather that increasingly in the pop music area of the music industry-I am not a great pop fan myself-performers now make their money not from selling records of any sort, but by going out and performing live to the public. So the music industry has realised that the solicitors' letters sent to some people have not been a major deterrent.

It may be that the video industry now has to look at this in the same way and see whether there are other ways in which it can tackle this issue. We can accept that this is a problem and that we may have to look at ways in which we stop it, but surely the industries themselves have got see how they can deal with it.

4.45 pm

Lord Whitty: My Lords, I was not going to intervene on this amendment, but in the light of the contributions from my noble friend Lord Triesman and the noble Lord, Lord Birt, I have to put a contrary case.

Those of us who are against much of what is in this part of the Bill are not saying that nothing should be done or that rights holders, whoever they are, do not have rights. What we are saying is that there are better ways of getting people to move on to legal forms of file-sharing than criminalising it up front, at the first end of the process, as-I nearly called him my noble friend-the noble Lord, Lord Lucas, and my noble friend Lord Mitchell were expounding. This is a very difficult and complex problem-even though the actual technology is relatively simple-and it is not sensible to approach it by effectively alienating large chunks of the population when there is an alternative. The alternative may take longer, but it is clear that, both in the present system of going to the courts and in the potential of the system proposed in the Bill, proportionality will go out of the window. I refer to the courts and the behaviour of solicitors. The example referred to by the noble Lord, Lord Lucas, was not at the behest of a starving musician in a garret or even the FA, but on behalf of pornographers, who form the largest element in solicitors' letters in this country and Germany so far.

We accept that there is clearly an issue here. We accept the basis on which the Government are approaching this problem. We accept that we have to resolve it. However, we should not do so by taking a bludgeon first and not giving a legal way out. In the long run, a move across to legal forms of file-sharing will be much more beneficial to those genuine rights holders whose interests my noble friend Lord Triesman and the noble Lord, Lord Birt, are upholding.



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I am sorry I have entered into a Second Reading debate. Whereas I spoke at Second Reading, my noble friend Lord Triesman did not, so he has an excuse and I do not, but I thought the contrary point of view on this issue ought really to be expanded on at this point.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Davies of Oldham): My Lords, if the debate on this amendment is not quite a Second Reading debate it comes very close to one, given the range of issues involved, the depth and significance of them and the differing views that have been expressed about the issue with which the Government are confronted and seek to deal with in this Bill.

I will deal with one or two extraneous matters first, and then perhaps I will get on to the main issues. I have not the slightest doubt that the noble Lord, Lord Razzall, is more than satisfied with the debate that he has provoked with his amendment and therefore will not have the slightest hesitation in withdrawing it in due course. So I am not going to address him in terms of the necessity for the amendment to be withdrawn. I am sure he knew when he tabled it that, as has been reflected in this debate, at present we are merely in the foothills of this Bill and the issues we have to address, and Clause 17 rises before us as the Everest which we will need to surmount in due course. We will have had extensive discussions well before that. As has been indicated to the Committee during this debate there are close to a couple of hundred amendments between us and Clause 17. So it is not as though these issues will not receive extensive discussion. The amendment has helped to identify difficulties, challenges and problems and, in asking the noble Lord to withdraw his amendment, I hope to show that the Government, in their wisdom and after full consultation and endless representation, have got the balance right in the Bill.

On most sides there is recognition of the serious problems and of the great difficulties involved in solving them. I shall deal first with the extraneous ones. If the noble Earl, Lord Erroll, will forgive me, I shall address his point at the proper location, which is the next amendment. I have got almost word for word what he said and he will receive my reply when we get to the next amendment, which is where it should be properly addressed.

In introducing the amendment, the noble Lord, Lord Razzall, identified an issue which, in an obvious way, was countermanded almost immediately by the noble Lord, Lord Howard of Rising, who indicated that he took an entirely contrary view. He said that the problem at the present time was that those who needed to get on with the business of suing successfully were having great difficulties; it was essential that they should have the path cleared for them and nothing in the Bill ought to inhibit that. I hear what the noble Lord says; he speaks from the Opposition Front Bench and therefore makes an important point.

However, he will have heard from all sides of the Committee, not least from his own Benches-this was graphically expressed by the noble Lord, Lord Lucas-of the problems faced by ordinary citizens through the depredations of lawyers, acting often on behalf of significant interests, who are conducting themselves in

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ways which are exploitative of our fellow citizens. We need to erect defences because, as the noble Lord, Lord Lucas, indicated, the issue is not one of a gentle warning note or anything like that; nor is it one in which the lawyers operating in this way expect the issue to go to court action; it is one which is exploitative of people's fears. The demands go out and people respond because they are under a great deal of pressure from those demands; they feel that a court case will put them in great difficulty and therefore concede.

This is not the way in which we want the law to work in circumstances where right holders have interests to be defended. This was identified by my noble friend Lord Triesman. We fully understand why he was not here at Second Reading-he was in a much less interesting location, of course, because the debate on Second Reading here was quite fascinating-but we are glad that he is back today to give us the benefit of his perspective on one significant element of right holders.


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