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We already know that there are technical ways around this Bill-that is why Clause 17 is sitting in there, not that I think it is satisfactory. We already know that people will use cyberlockers or encryption. The only answer to this is to make sure that the industry keeps its side of the bargain and makes product easily available at a sensible price so that people do not have to go down the piracy route, and so that they do not go down this route because they cannot get at the stuff that they want, but because they do not want to pay the proper price for it. Under those circumstances the sanctions we have in this Bill

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are justified. However, if the industry refuses to make product available-"Avatar" is a very good example of a refusal to make product available when customers want it-why should we defend it? It does not seem to be part of the copyright bargain that we should allow that.

Lord Howard of Rising: My Lords, this group of amendments has one overriding theme: when is it appropriate for the Secretary of State to use these powers, and who is the best person to assess whether they are being used correctly?

I am not entirely comfortable with Amendment 168 and its suggestion of giving Ofcom such an explicit advisory role. I agree entirely that Ofcom is well-placed to make an accurate assessment as to the efficacy of any, or a particular, measure, and I agree with my noble friend's Amendment 172 that the wider market should be taken into account. However, there is an important difference between setting out the pros and cons of a step in an impartial manner, and actively seeking to influence government policy. Ofcom should participate enthusiastically in the former but stay well away from the latter.

My Amendment 171 would impose a level of parliamentary scrutiny on the process. The Minister has accepted the Delegated Powers and Regulatory Reform Committee's report on the standard of parliamentary scrutiny that would be appropriate for a Clause 11 order. My amendment seeks to ensure that Parliament will be properly informed when debating the order.

It is unavoidable that there will be considerable controversy over the imposition of technical measures. We have all received arguments and counterarguments over the past few weeks from internet service providers, copyright owners, other online companies and subscriber groups in relation to Clauses 4 to 9. It will be no different if Clauses 10 to 16 are ever implemented.

An impartial assessment of the measures being discussed will be an invaluable tool for weighing up these arguments. The Minister will surely appreciate how continuing uncertainty over the actual cost of implementing the earlier provisions has complicated debates on the apportionment of costs. In just the same way, ensuring that Parliament is fully informed with the best available data will help to ensure that scrutiny is effective.

Lord Puttnam: My Lords, before the Minister responds, it might be helpful if I bring to the Committee's attention the excellent report published yesterday that was produced by the House of Lords Communications Select Committee, under the chairmanship of the noble Lord, Lord Fowler, entitled, The British Film and Television Industries-Decline or Opportunity? Pages 39 and 40 of that report, which I commend to the Committee, contain a very sensible and well thought-through analysis of this issue. It would be enormously encouraging if the rest of this debate could take place within the framework set out in that report. It is sensible, forward looking and demonstrates an understanding of these complex problems. I hasten to add that I was not on the committee, but an enormous amount of time,

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trouble and energy have gone into producing the report, and it seems extraordinary to me that it is not informing this Committee's deliberations.

Lord Young of Norwood Green: On Amendment 168, Clause 10 is intended to give the Secretary of State the power to ask Ofcom whether it recommends the imposition of one or more technical obligations on internet service providers, and to give Ofcom the tools needed to reach such a recommendation. I am not sure what this amendment could add to that.

I agree with the noble Lord, Lord Clement-Jones, about the need for empirical evidence. However, his language was a little hyperbolic when he talked about the Secretary of State making a decision on a whim. We will not allow that. We have made it clear that this matter will require an affirmative resolution. We understand the importance of ensuring that we have the right evidence and of giving ourselves the opportunity to see whether the obligations change the climate sufficiently as to remove the need for the technical measure. There is no debate between us on this. I keep reiterating these assurances, mainly because I understand the concern that has been expressed, and because I hope that they will be accepted. The noble Lord, Lord Howard, expressed a similar concern in relation to the Secretary of State. I again point out that we are talking about an affirmative resolution.

The noble Lord, Lord Lucas, talked about product availability. Of course, there are products out there. We will certainly not create a monopoly. Again, that is hyperbole. ITunes is not the only provider; there is Spotify and plenty of other examples. I am sure that the market will continue to expand. However, I am still puzzled by the fact that the noble Lord and the noble Earl, Lord Erroll, seem to believe that somehow it is perfectly okay for illegal downloads to take place. I do not share that view. I shall not mention the A-word again because we have had far too much debate on that, but I do not understand why we should be happy for people to go into cinemas with camcorders and illicitly download material, and why we should wish to protect that. We believe that there is an obligation on the market to-

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Lord Fowler: The noble Lord mentions camcorders. I agree with him entirely. It was for that reason that we made a proposal in the Select Committee report, which the noble Lord, Lord Puttnam, has just mentioned, that there should be a specific offence covering camcorder crime. Some of the arguments that are being put forward on freedom I regard as pretty phoney. However, there is no argument whatsoever on camcorder crime. It is absolutely deliberate crime. Why do the Government not put forward a specific offence as far as that is concerned?

Lord Young of Norwood Green: I was hoping that I would inspire the noble Lord to make a comment and I thank him for his assessment. I do not feel that I can respond as to why we are not doing that, but I will take that point away. I thank him for that part of the

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analysis, which reinforced the point that my noble friend Lord Puttnam made in relation to the framework of this debate.

I say to the noble Lord, Lord Howard, that I have a lot of sympathy with Amendment 171. The assessments that Ofcom carries out will clearly be of significance in the Secretary of State's decision whether technical obligations should be imposed on internet service providers. They will be of interest to both Houses of Parliament and more widely. I also take the point that he makes about the apportionment of costs. We gave an indication of that, but it is not set in stone. We understand the importance of this.

On Amendment 168, there may be a need to ensure that confidential or other sensitive information is protected. I suggest that this is something that we should take away and consider.

On Amendment 173, I do not think that this is a responsibility that Ofcom should take on. Imposing technical obligations would be a serious matter and likely to be controversial. I again agree with the assessment made by the noble Lord, Lord Howard-I am fearful of this concurrence, but when it is right, it is right-that such a decision should be taken by a Minister rather than delegated to the regulator, as the decision is one for which the Minister can be held to account. It is significantly quicker for a Secretary of State to reach a decision and act through an order subject to the affirmative procedure.

As for Amendments 174 and 174A, there is no doubt that the report produced by Ofcom will be highly relevant to the decision on whether to impose technical obligations. However, I do not think that we should allow the Secretary of State to consider only Ofcom's assessment. He must have the ability to consider other factors, such as initiatives emerging at a European level. I also understand the wish for the decision to be taken on the basis of assessments from Ofcom. However, Amendment 174A might weaken the wording, as "following" merely suggests a sequence of events.

I understand what noble Lords are seeking to achieve, but on balance there is more to be said for keeping a degree of freedom for the Secretary of State-at the same time as he is accountable to Parliament through affirmative resolution-to take the full range of considerations into account when recommending an important decision, which should remain his responsibility. On the basis of that explanation, I trust that the noble Lord will feel able to withdraw the amendment.

Lord Lucas: My Lords, I entirely agree with the noble Lord that my noble friend Lord Howard of Rising has won the argument on Amendment 171 and that I should not pursue Amendment 173. However, I want to set the noble Lord straight on where I am aiming at in this Bill as a whole.

I do not think that any of us is defending illegal downloading. We are all trying to produce a system that gets copyright owners, of whom I am one, a proper return for the product that is sold over the internet, of which I do a good deal. My concerns arise as I do not believe that there are acceptable technical measures that will deal with the methods that illegal downloaders will resort to if we do not make it possible for them to obtain the product that they want, in the

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way that they want, easily and at a sensible price. If we support the industry in its backwards-facing approach, we will merely get the illegal downloaders adopting methods to which the only solution is deep packet inspection. That essentially means that we will allow officialdom to see our entire internet traffic. I do not think that that is what the Government intend or what any of us would find acceptable, particularly as a measure just to protect copyright. Protecting copyright to the extent that the law requires it must be in the context that the industry is doing its bit, too.

I shall take the approach that protecting my own copyrights is best done by enhancing the user's experience, whereby cheating and copying will result in a less fulfilling experience than paying the price that I am asking. It is perfectly possible for the industry to do that; indeed, parts of it are doing that. Regarding those who need only copyright protection, we should not continue to refuse to make material available. I return to the example that the noble Lord gave about "Avatar". As soon as there is a buzz out there about a film, people want to see what it is about, have something to satisfy that curiosity, know what they should be going to and be part of this great experience-although they have not yet been to the cinema. We should require the industry to deal properly with its customers.

All my amendments are aimed merely at trying to get the industry to recognise that we are in a new century and that there are new ways of doing things and making money out of copyright. That is what the industry should be pursuing. I entirely agree with the noble Lord that no one in the Committee is saying that we should not defend copyright or that we should in some way promote or allow illegal downloading.

Lord Clement-Jones: My Lords, I thank the Minister for his reply and I thank those who have taken part in this debate. Further to the remarks of the noble Lord, Lord Lucas, I do not believe that copyright owners are the only ones with the moral high ground. We are trying to find a balance; that is what these debates have been about. We may have been kicking the Minister but we have actually been kicking the tyres of the Bill. We have heard some interesting responses and interesting aspects have been raised.

The noble Lord, Lord Puttnam, mentioned the report of the Communications Committee of this House. It was a very good report, which was given considerable coverage, but none of us is unaware of the need for better copyright protection. The noble Lord, Lord Fowler, made a perfectly apposite point that further amendments to protect copyright need to be made. Many of them relate not to codes or the civil law but to the criminal law. The recent OiNK case is probably an illustration of that. The use of camcorders is another area where the criminal law could be brought to bear. However, the Government have shied away from inserting such provisions in the Bill. It will be interesting to see whether they will introduce them in the future, or whether any future Government will do so. Such provisions will be the real heavy artillery for the protection of copyright.

I heard what the Minister said about the need for empirical evidence and I was cheered by his agreement. I was not cheered by his disagreement with my

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amendments, but we are philosophical about these matters. I am sure that his words will be read with enormous care in years to come when people see the Secretary of State, by edict, imposing technical measures. Nevertheless, in the mean time I beg leave to withdraw the amendment.

Amendment 168 withdrawn.

Amendment 169

Moved by Lord Clement-Jones

169: Clause 10, page 13, leave out lines 13 to 15

Lord Clement-Jones: My Lords, the amendment is a straightforward attempt to bring the Minister out of his lair to debate subsection (5). It seems extremely broad in the context. It states:

"Internet service providers must give OFCOM any assistance that OFCOM reasonably require for the purposes of complying with any direction under this section".

That seems to impose a very broad duty. It would be useful to hear how the Minister believes that will operate and the kinds of duties and liabilities that it will impose on ISPs in the circumstances. I beg to move.

Lord Lucas: My Lords, I speak to Amendment 170. Although ISPs have the major role to play, copyright owners have a crucial role to play, too. It is they who generate the evidence on which the whole process is based. How they do that, the methods and technicalities of the systems that they are using and the quality of the evidence that they are generating are an enormously important part of moving to a system where the justice is more summary than that which is available through the civil courts. It seems to me that they cannot black-box this stuff; they cannot say, "This evidence is true but we aren't going to tell you how we got it". They have to disclose to Ofcom the exact methods that they are using and they have to expose those methods to a critical analysis, so that Ofcom can be sure that that part of the process is working well enough to justify the rest of the process. I think, therefore, that they should be included in this clause.

The Earl of Erroll: My Lords, the amendment tabled by the noble Lord, Lord Lucas, is extremely important. We have to be balanced. If we are going to require certain things of the ISPs, then the other side-or the other party involved-must also have the duty to provide them, otherwise the process is hugely imbalanced. I take this opportunity to say to the Minister that this is not a "them and us" situation. One is not trying to be against the copyright holders. I endorse entirely what the noble Lord, Lord Lucas, said about the last amendment.

These last three groups of amendments have been about trying to ensure that Ofcom and the Secretary of State have sufficient information to make a properly balanced decision. The challenge on the first group was that the Minister said, "You don't need Ofcom to have this information because the Secretary of State will take it into consideration after he sees the report". On the second group, we heard that Ofcom was going

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to advise the Secretary of State primarily, so that what Ofcom says will be hugely important and it should be doing the wider, earlier investigation; if it does not, a report will be produced that is rubbished by the Minister and the Government will get egg on their face.

The Minister should take all this back and think about what will inform the decision of the Secretary of State to go further into the technical measures. It is when the technical measures start getting implemented that whichever Government are in charge will have a huge outcry from the general populace. If widespread technical measures are put in place, businesses will react and possibly relocate out of the UK and there will be huge effects on the market. If that does not happen, then all well and good, but I would rather look on the gloomy side than say, "We just hope people will respond".

We have to work out whether Ofcom will produce a complete report, in which case we need the provisions of the earlier amendments, or whether it will be the Secretary of State, in which case we can downplay the importance of the Ofcom report. Either way, Amendment 170 is essential for us at least to get balance at this stage in this requirement.

Lord Howard of Rising: My Lords, I am concerned about the level of information that Ofcom might be able to require from an internet service provider under this subsection. I am partly reassured that "reasonably" is included in the drafting but would very much like to hear a little more on the exact meaning of that word in these circumstances.

I agree with my noble friend and the noble Earl, Lord Erroll, that there could be circumstances in which the involvement of copyright owners might be very useful. For example, as we have discussed, one measure that a subscriber might take to prevent another person from breaching copyright on his account would be to block sites known to provide unlawful material. It would not be inconceivable that a technical obligation might consist of a list of similar sites that the internet service providers must block to certain subscribers. If this is the case, the copyright owners would be a useful resource to keep an up-to-date list of websites that qualify for blocking.

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Lord Faulkner of Worcester: My Lords, I thank all noble Lords who have contributed to this short debate. We have already discussed a wide range of issues that the Secretary of State might want Ofcom to look at in any assessment under Clause 10. It seems self-evident that on a great number of them, in particular those involving the cost of operating technical measures and the ability of the ISPs to impose specific obligations, Ofcom will require help and information from ISPs. We therefore believe that new subsection (5) in Clause 10 is a very important provision. I disagree with the suggestion of the noble Lord, Lord Clement-Jones, that it could be deleted. If Ofcom were not able to call on ISPs to provide information in this context, there is a risk that any Ofcom assessment under Clause 10 would be lacking in vital information and could lead to the wrong conclusion.

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From the perspective of Amendment 170, tabled by the noble Lord, Lord Lucas, nothing on the long list of things that noble Lords have drawn to our attention as needing consideration in these assessments would require technical or commercial information from copyright owners. If we are wrong and it transpires that some do, Ofcom will have the power to require it under Section 135 of the Communications Act by virtue of the amendment to the Act in Clause 16(2).

I would like to be able to give the noble Lord, Lord Howard of Rising, the definition of "reasonable" that he sought. Perhaps during the course of proceedings I will be able to do that, but I cannot for the moment. In the mean time, I hope that the noble Lord, Lord Clement-Jones, will agree to withdraw his amendment.

Lord Clement-Jones: My Lords, I know that the Minister is intent on being brief and efficient in his responses today, but I fear that his response was a little too brief. He talked about the information and help that internet service providers may be asked to, and should, give and referred to a long list. I must have missed this somehow. Certainly in his response he did not list anything. I asked what kind of assistance would be required and what kinds of liabilities would be undertaken by the ISPs, but I did not receive any answer. A little recapitulation would be extremely helpful.

Lord Faulkner of Worcester: I can help the noble Lord to some extent. One thing that the ISPs might need to provide Ofcom with is technical help in areas such as participating in technical workshops. We do not take the view-here I revert to the amendment tabled by the noble Lord, Lord Lucas-that copyright owners are likely to have to provide that sort of practical help.

Lord Clement-Jones: My Lords, "participating in technical workshops" sounds a bit thin. This is a very wide clause to ensure that internet service providers take part in technical workshops. I hope that when the amendment comes back on Report, as I fear it must because the reply has been so thin-

Lord Lucas: My Lords, perhaps I may pick up on the reply given to my amendment, now that I have had time to research it. If this applies and a reference in Clause 16 brings copyright owners, who are fairly peripheral people, within Ofcom's ambit, why do we need this subsection, because surely internet service providers would be there too?

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