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The Committee will not be surprised to hear that I also do not agree that the Secretary of State's ability to renew any such time-limited application of technical obligations should be on the basis of a recommendation from Ofcom, even though we highly regard that organisation. In the same way that we do not think it is right to restrict the initial decision to an assessment by Ofcom, we do not think that it should apply here. In practice, the view of the regulator will have force, but it should not be the sole arbiter of whether technical measures are needed, and I doubt very much whether Ofcom would wish to be put in that position. On balance, I hope that the noble Lord will agree that what I have said is reasonable and will withdraw his amendment.
Lord Lucas: My Lords, indeed, that is a very reasonable answer, and I beg leave to withdraw the amendment.
Clause 11, as amended, agreed.
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Clause 13 : Contents of code about obligations to limit internet access
183: Clause 13, page 14, line 32, at end insert-
"( ) that it makes proper provision for rights of appeal by subscribers concerning notifications (see subsection (1A));"
Lord Lucas: My Lords, we discussed this in the context of earlier parts of the Bill, and I hope the Minister will bear in mind our various conversations on the exact wording of these amendments. I am not trying to restart any of the arguments which the Government won, or which I persuaded them to accept, on what appeals should look like; I am just trying to address the basic requirement that a proper method of appeal should be available in these circumstances. It is not sufficient to leave this as a "maybe". It ought to be a requirement and spelt out in the Bill. I beg to move.
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Lord Howard of Rising: My Lords, I agree with my noble friend that the scope of any appeal process relating to the imposition of technical measures should be at least as wide as for the measures in Clauses 4 to 8. A similar argument holds for the division of costs. If the Minister disagrees, I should be interested in his reasoning: infringement reports and technical measures are imposed on a subscriber on the basis of allegations made by a copyright holder and are implemented by an internet service provider. If anything, the appeal process should be tilted more in favour of the subscriber because of the more serious consequences of having technical measures imposed.
As to the amendment in the name of the noble Lord, Lord Razzall, I hope very much that the Minister will not fall back on his desire for endless flexibility. But if he does not accept this amendment, I hope that he will give us an example of when it would not be absolutely necessary to include these measures in a code.
My amendment probes a little further the question of whether a technical measure stands while an appeal is ongoing. It is our view that a technical measure should not be imposed until all avenues for appeal and objection have been exhausted. After all, a technical measure will have a significant impact on a subscriber and, if the measure is proved not to have been justified, it will be time-consuming, and possibly expensive, to compensate for the unjustified impact.
Of course, there is the view that delaying the technical measure while a protracted appeal case is concluded merely allows for more copyright infringement, but if ever there was an incentive to establish a low-cost, effective and, above all, rapid appeal system, this is it. By postponing technical measures until the appeal system is over, an efficient system is to everyone's benefit.
Lord Clement-Jones: My Lords, I speak to Amendment 191, which was ably referred to by the noble Lord, Lord Howard. I thought that he made the point entirely appropriately that in some cases of parliamentary drafting the word "may" means "must".
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When we talked about the initial obligations code, we talked about what needed to be included and Clause 13(4) is an important element of that. The signpost should be "must" rather than "may". If no provision for the payment of a penalty to a person is specified in the code and there are no provisions requiring a copyright owner to indemnify an internet service provider or for postponement in the case of appeal, the code would be extremely deficient. Although this amendment is innocuous on the face of it, it is significant and I look forward to the Minister's reply.
The Earl of Erroll: My Lords, I agree with Amendment 191, which would change the word "may" to "must". Clause 13(4) does not include payment to the subscriber should it turn out to be an unjust disconnection, which could be extremely serious in the case of a small business. There could be a huge knock-on effect and it could bankrupt a small business. People are compensated for wrongful arrest and I would treat this situation in the same way. There could be extremely serious consequences on someone's livelihood; it is not that it "may" be taken into consideration but that it "must" be taken into consideration.
Lord Young of Norwood Green: My Lords, I agree absolutely that it is vital that there should be proper and fair provision for appeals for those subscribers who may find themselves subject to technical measures. The current text of Clause 13 already properly provides for an appeals mechanism, including to a first-tier tribunal if necessary. I appreciate the fact that the noble Lord, Lord Lucas, and other noble Lords, have expressed concern in previous Committee sittings that the Bill does not contain enough detail on the appeals mechanism and the protection that the subscriber should have. It is our intention to think hard about providing greater clarity on how the appeals mechanisms will work in relation both to the technical measures and the initial measures, the defences that the subscribers may rely on and how they can bring evidence to defend themselves. Those points have justifiably been raised previously. I cannot promise changes to the Bill, although they may be necessary, but I very much take the noble Lord's point that we need to think further about this, so we will be returning to it.
I am not so happy to agree to Amendment 191, but I can bring good news on Amendment 193, tabled by the noble Lord, Lord Howard. We are prepared to consider it and I am happy to confirm here in Committee that it is the Government's intention that the full appeals process should be completed before any technical measure is imposed. Since it goes with the grain of the Government's thinking, perhaps we can take the amendment away and consider it further. I hope in the light of these explanations the noble Lord will feel able to withdraw the amendment.
Lord Lucas: My Lords, that was a very satisfactory reply and I beg leave to withdraw the amendment.
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184: Clause 13, page 14, line 39, at end insert-
"( ) that regard is had to the nature of any service made available by a subscriber that is a library or an educational or cultural establishment, to its staff, members or users, and the degree of control that such organisations have over their internet access"
Lord Clement-Jones: My Lords, I shall speak also to Amendment 196. In another part of the Bill we discussed the whole area of wi-fi and library services. The Minister was very clear, eventually, in saying which side of the line libraries and wi-fi providers fell. I do not wish to prolong the agony of that debate unduly because we have dealt with the principles involved to a large extent, but there is considerable dismay particularly among cultural and educational institutions that they will fall on that side of the line. Many of them feel that they will have to rethink on whether they can continue to provide these kinds of services to students and so on. The Minister has been saying pretty consistently that they will have to take responsibility for all illegal downloading of those who use their service. That is a heavy responsibility for those institutions.
The two amendments have a similar purpose, as did the previous amendments relating to the initial obligations code. I do not know whether the Minister has had time to reflect on these matters, but it seems extraordinary that we will be placing such a burden on these institutions. I heard what the Minister said about the kinds of things they could do in terms of installing software and so on, but this is not the family home. We are talking about university colleges and the young people who use the services are free agents. I hope that the Minister will think again about this. Certainly the correspondence that I have received since these debates began has been considerable. The cultural and educational sectors are very concerned about these matters.
I hope that the Minister will think again about this. Certainly the correspondence I have received since we last had these debates has been considerable, and I can say that the cultural and educational sectors are very concerned about these matters. Perhaps the Minister will take the opportunity, on this second time around, to be rather more reassuring than he was the first time. I beg to move.
Lord Lucas: My Lords, I would be grateful if the Minister felt able to enlarge on what he said last time about the measures that libraries and similar institutions can take to avoid the consequences of this Bill, given how their facilities are likely to be used and the nature of their customers.
The Earl of Erroll: My Lords, I endorse everything that has just been said. What is not in this amendment, but probably should be, is the position of local authorities providing free wi-fi as a public service, which is extremely useful in the modern digital world. The Minister might want to consider that before the next stage-indeed, I am sure that he will do so.
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Lord Howard of Rising: My Lords, like other noble Lords, I have a lot of sympathy with the noble Lord's amendments. It is quite right that libraries and educational establishments might have particular conflicts between their founding principles of allowing users access to as broad a selection of material as possible and the Government's desire that none of those users should ever abuse the service. It is only common sense to require the Secretary of State to have regard to these difficulties when imposing a technical measure.
Indeed, having regard to the feasibility of an order should be a concern across the board. Educational establishments might have difficulties with their principles, but other organisations might have difficulties on purely practical grounds. If a local shop is providing free wireless access, something that is of great benefit to the public, there is a limit to how effective any preventive measures they take will be, and there are some very technically expert people out there. It would be quite unreasonable to expect every service provider to counter every attempt to infringe copyright through their service.
Lord Young of Norwood Green: My Lords, as has been acknowledged by the noble Lord, Lord Clement-Jones, we have previously debated the issue covered by Amendment 184 at length: the position of libraries and other cultural institutions and their subscribers under the provisions of the Bill. As I have said, but it bears repeating, we value highly the service that such bodies provide in the community, but we think that so long as they take pragmatic and proportionate measures to protect their systems and deter copyright infringement, they have nothing to worry about. I do not agree that we should make them a special case within the legislation, or that their position makes them particularly deserving of special treatment within the technical obligations code over and above more commercial networks or, indeed, the position of the general public. I simply do not believe that a university or a library either should or would want to give people free rein to act unlawfully simply because the institution serves a cultural or educational purpose. That must be wrong.
I also cannot accept the point about young people made by the noble Lord, Lord Clement-Jones. I do not want to paraphrase him, but I think he referred to young people as "free agents". They might be free agents in many respects, but not when they enter the library and not when they participate in the university system. There are codes of behaviour that they have to accept. What we are discussing, in ensuring that they do so, is how libraries and universities can take what we would consider to be reasonable and proportionate measures.
Amendment 196 goes further and would allow anyone using anyone else's connection with or without their permission to infringe copyright with impunity. That does not stand up to scrutiny. It is only right that people should be expected to take responsibility for what happens via the connection they pay for, which almost invariably would be provided under contract with a prohibition on using the service or allowing it to be used for unlawful purposes.
I want to try to address the question of libraries and universities, so I shall read certain points into the record. We should consider how libraries currently
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In common with commercial services, all library services should have a conditions-of-use policy which users have to agree to before getting access to the network. This will state that, for example, no unlawful activity including copyright infringement is permitted. Policy usually stipulates that legal liability for unlawful activities sits with the individual, not the library service.
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I have not yet got as much information as I would like on universities, but we are pursuing this and I will make this information available to noble Lords in-between these debates. The situation in universities is more complex than in libraries, not least because, generally speaking, they need and operate networks with much higher bandwidth. In principle, we do not see any problem in adopting the same approach as outlined for libraries, but we are currently involved in discussions with JANET, the UK's education and research network, and some educational establishments on how their networks operate and the actions they currently take.
The noble Earl, Lord Erroll, mentioned a particular university; we will try to pursue that one. I hope that with the assurances and the explanation I have given, noble Lords will feel able to withdraw the amendment.
Baroness Miller of Chilthorne Domer: My Lords, the Minister mentioned fixed terminals in libraries having software to prevent peer-to-peer file-sharing, but universities are a very different case in that many students have their own laptops which they simply plug into the university's system. As the Minister has said that he does not think that universities merit an entirely different approach, have he and his department explored whether there is a way of framing the clause so that a different approach could be taken, or will he explore that before Report? I did not hear him say either of those things.
Lord Maxton: My Lords, I do not think that my noble friend replied to the point made by the noble Earl, Lord Erroll, about local authorities providing free internet access in their area, which is a much broader concept than that of universities or libraries, particularly as it will be wireless and therefore possibly more difficult to monitor. Unless there is an answer to this, it might clash with the Government's commitment to provide broadband internet to all areas. There may very well be rural areas where the only way to provide broadband is to provide a wireless point and then have the rest of the community picking up that free wireless
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Lord Young of Norwood Green: My Lords, I shall try to address these points. I was trying to give the noble Baroness, Lady Miller, an assurance on universities when I said that we had not got all the information that we needed. We certainly do not think that we can exempt them, but I want to come back when we have fuller information. We will make that information available prior to Report.
There are reasonable steps that institutions such as libraries can take on wireless connection to make it harder for people to access and use peer-to-peer sites and software. We do not pretend that such measures are 100 per cent effective and we do not require this. It is more a case of ensuring that the would-be infringer has to make a conscious decision and some effort to continue to infringe. We have written a letter in which we set out the types of measures that we would deem "reasonable". I do not know whether everybody has seen that letter, but we have made it available.
On wi-fi supplied by local authorities-the Swindon example is the one that comes to mind-we think that it would be much more difficult in those circumstances for significant downloading to take place, because of bandwidth restrictions. If I can supply more information on that, I shall do so in trying to assuage the concerns of my noble friend Lord Maxton.
The Earl of Erroll: The Minister talked about taking reasonable steps. I seem to remember that at an earlier stage we proposed that the steps should be laid out and that there should be a defence that you had taken the reasonable steps as laid out by Ofcom in the code. The Government rejected that, saying that it was unreasonable, because then there could be all sorts of other defences. I presume that this means that the Government will rethink their attitude to the earlier amendments.
Lord Young of Norwood Green: My memory of that is slightly different. I do not think that we have ever said that, if we were advising people on what we regarded as reasonable measures and they took those measures, that would not in itself be a reasonable defence.
Lord Clement-Jones: My Lords, I thank the Minister for his reply on those amendments. We are making some progress. The Minister's reply was a deal more informative than it was last time. There is still a problem with the boundary being set where it has been placed, but if the Minister is saying that duties are going to be different depending on the ability of the subscriber to control the activities of the individuals using the service, then we are making some progress. He has acknowledged that it is probably more difficult for a university system to control what their users do than it is for a library in a fixed position, so to speak.
The local government example is fraught with difficulties and I look forward to seeing what the Minister's letter says. I suspect that it will become
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Little by little, we are teasing out more information from the Minister. He says that he is doing more research into how universities block access or are able to control the activities of their users. I hope that he will come back with more in his letter. He will also address the issue of local authority services, which is an important factor as well. All in all, we await his letter with bated breath. In the mean time, I beg leave to withdraw the amendment.
Lord Whitty: I shall speak also to the other amendments in this group. I apologise to the Committee for not being here for my previous amendments, although that was no doubt some relief to my noble friend the Minister.
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