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First, we propose the introduction of a clear threshold that must be met before the power in Clause 17 may be used. This threshold requires that the power may be used only if the infringement in question is of a sufficiently damaging nature as to warrant intervention. That intervention must be proportionate to the threat

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it is intended to address. This assessment must form part of an explanatory report which will be laid before Parliament for 60 days under the so-called super-affirmative resolution procedure.

Secondly, the amendment will make it crystal clear that all persons likely to be affected by an order under this power should be consulted. The results of that consultation and an assessment of why proposed action is proportionate will also form part of the explanatory report which will be put before Parliament.

Finally, the super-affirmative resolution procedure requires that the Government cannot continue with any proposed use of the power if a committee of either House recommends that they do not. Such a recommendation would have to be overturned by a vote of the House before-and I stress before-the order could progress any further. These amendments will ensure that Parliament has sufficient time to consider the implications of any order made under this power, while still enabling the Government to respond quickly and flexibly to developments that affect our valuable creative industries.

In conclusion, I would like again to reassure the House that we have listened to the points raised, including those by a committee of this House. I hope your Lordships will agree that the amendments we propose here address their concerns in a very serious way. I beg to move.

Lord Puttnam: Perhaps I may speak to my Amendments 211C to 211J, as amendments to government Amendment 211B, and Amendment 212 in the same group. Some while ago, my noble friend Lord Bragg and I looked very carefully at what was originally proposed by the Government, and considered that we were perpetually trying to sail between Scylla and Charybdis. Scylla is, frankly, turning a blind eye to file sharing and letting it continue much as it is, with all the damage that is consequent; and Charybdis is the original proposal from the Government that we did not feel we could happily go along with.

The utilisation of the super-affirmative resolution procedure is not that usual, but I would commend it to the House. It is a very effective piece of legislation. We used it during the passage of the Communications Bill 2003. It offers significantly greater safeguards than the normal affirmative resolution procedure and has other advantages. The purpose of the amendments that my noble friend Lord Bragg and I put down is to increase the period of time for consultation from 60 to 90 days, which we feel is appropriate. These are complex issues in a difficult and diverse industry and we feel that a 90-day period is more suited. Amendment 212 is in the same spirit.

I could speak at some length about this. A lot of work has gone into it. I think that the industry for the most part sees this as an acceptable resolution to what has been a very vexed problem. I hope only that my noble friend Lord Whitty, the noble Lord, Lord Lucas, and others I respect in this House will see this as a genuine attempt to come up with an answer to an almost implacable problem.

Lord Howard of Rising: My Lords, as I see it, there are two areas of concern about this clause-policy and procedure. I shall address policy first. Her Majesty's

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Government are asking for extremely wide powers for the purposes set out in government Amendment 211A. It is understandable that the Government seek powers to future-proof, and that these will necessarily be vague given that the purpose of this clause is to deal with unknown problems and to cope with future technology. However, the power being demanded is quite out of proportion to the potential problems.

At various moments during our debate, Ministers have pleaded with the House to keep things in perspective. I urge Her Majesty's Government to do the same. We are dealing in this clause with the prevention or reduction of online infringement of copyright. To give the Secretary of State such huge powers as are being demanded in order to deal with copyright infringement would be unreasonable and, as I have already said, totally out of proportion.

Effectively, entirely at the discretion of the Secretary of State, a large amount of law can be amended-the whole of Part I of the Copyright, Designs and Patents Act. One can take hypothetical examples too far, but I do not think that I am doing so when suggesting that a future Secretary of State might decide to amend significantly existing rights to copy or broadcast works because of an unfortunate rise in infringements. Other sections, such as those covering the terms of licences, could be materially amended in order to address copyright infringement.

Should some unimaginable situation arise, or there be infringements beyond what could reasonably be expected, there is nothing to stop the Secretary of State returning to Parliament and seeking primary legislation to deal with the problem. To expect Parliament to give the Secretary of State the discretion at will to make laws as far-reaching as the amendment makes possible-I will come to procedure in a minute-to cope with online infringement is expecting Parliament quite unjustifiably to surrender its role of holding the Government to account. It demonstrates a contempt for Parliament which has been demonstrated all too often by this Government.

There are protections in Clause 17 against improper use, but they are not as strong as might at first appear, and would not provide the restraint necessary for such wide-ranging powers. The new threshold test that the measure must be proportionate is nothing but reassuring flannel, as everything that the Secretary of State does should anyway be proportionate. The restriction on amending or creating criminal offences is necessary, but presumably does not cover creating or modifying provisions allowing for an injunction, which is a civil issue but which can still impose significant restrictions on both companies and individuals.

The Government's justification for asking for those dictatorial powers is that the procedure for putting them into effect would act as a restriction and give Parliament the opportunity to hold Ministers to account, as the noble Lord, Lord Puttnam, pointed out, but the super-affirmative procedure suggested by the Government in no way answers the concerns felt by many, despite the noble Lord's comments. The Delegated Powers and Regulatory Reform Committee did its usual sterling job and called attention to Clause 17 in its original report on the Bill. It is difficult to argue with its recommendations.



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In its most recent report, the committee states unambiguously that,

The committee leaves the final decision to the House, but I continue to hold that the Government have not met the legitimate concerns held by many in this House and that the procedures offered by the Government do not give adequate protection against the huge powers for which they are asking. The super-affirmative procedure is not a compromise between secondary and primary legislation. The DPRRC notes that it is,

With the best will in the world, I cannot see how online copyright infringement is in any way exceptional. It may be undesirable; it may be something that this House should be trying to do its best to stop; but I do not think that it is exceptional.

With the super-affirmative process, all the flaws of secondary legislation remain. There is no chance to insist on amendments. Although there is no formal bar against throwing out a super-affirmative in its entirety, I am sure that I do not need to remind your Lordships how very rarely this House chooses to take such a drastic step. Statutory instruments have been thrown out of this House only three times since the war-one of which was at the instigation of the noble Lord, Lord Clement-Jones. Some may say, "It is all right, we have the House of Commons", but in fact only eight statutory instruments subject to the negative procedure have been annulled in the House of Commons since World War II. It is very rare for affirmative statutory instruments to be defeated in the House of Commons, the last occasion being in 1978.

6.15 pm

I end my comments on the procedural mishmash that the Government seek to insert into the Bill by again citing the committee's report, which expressed things perfectly when it stated:

"The super-affirmative procedure is not an adequate substitute for Parliament's established procedures for dealing with matters of complexity and importance, through primary legislation".

I therefore entirely reject Amendment 211B. If the Government are unable to define the purpose of Clause 17 in such a way as to make a normal affirmative procedure acceptable to this House and to the Delegated Powers and Regulatory Reform Committee-and I do not consider that Amendment 211A does that-they should remove Clause 17 entirely and proceed against future online copyright infringement by primary legislation.

The amendments tabled by the noble Lord, Lord Puttnam, although entirely praiseworthy in their attempt to further parliamentary scrutiny, do not really answer the problem.

Lord Puttnam: I just wanted to make a point that I probably should have made in introducing my amendments. Having sat in this Chamber for 13 years, I know the simple reality of how long it takes to bring primary legislation before this House. We have to find some means of ensuring that primary legislation can reach the House at such a time as to deal with the problem. Recently, a complaint against Microsoft has

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taken 10 years-10 years, my Lords-to come to a satisfactory conclusion. Those 10 years could be the end of the intellectual copyright business in the UK if primary legislation cannot deal with massive infringement. We do not have 10 years. The noble Lord will hope-he may possibly even expect-to find himself in government, possibly this year. I promise him that this type of solution to this type of problem will be something that a future Conservative Government may well find themselves seeking. I hope very much that, in rejecting it, he has taken that thought on board.

Lord Howard of Rising: I thank the noble Lord for his comment, and I sympathise hugely with what he is saying, but I also feel that the supremacy of Parliament is more important. I also think that it is always possible to fast-track primary legislation. It does not need to take 10 years. Indeed, I believe that the Government want to see this Bill through fairly quickly, and that that will be achieved.

I shall comment briefly on my amendment in this group, which was tabled several weeks ago, and a lot of water has flowed under the bridge since then. We were willing to consider the possibility that Clause 17 could be used to implement some steps that the Government were developing that had nearly been completed but were not quite ready to be included in the Bill. The amendment was to give the Government a period of grace to complete any formal stages that such provisions might have been going through, such as a compulsory period of examination at the European level.

It has become clear during the past weeks that there are in fact no such provisions. The Government do not know what Clause 17 would be used for, and they have no plans for addressing any other type of online infringement than those set out in Clauses 4 to 16. We are now inclined to the view that Amendment 213 would not be helpful to copyright holders, internet service providers or any other person involved in the industry. It would be actively prejudicial to the interests of Parliament. I shall therefore not be moving it when we reach that point in our proceedings.

We sympathise with the ambition behind Clause 17. If the Government could find a way of saying the same thing that did not show quite such contempt for Parliament-we would need to see considerable movement before Clause 17 was in an acceptable form-we might take a different view.

Lord Whitty: My Lords, I am not sure whether my intervention is appropriate here or whether it should have waited until the clause stand part debate to which my name is attached. I promise the Minister that I will not say it twice.

I deeply appreciate the efforts that my noble friends Lord Puttnam and Lord Bragg have put into this and the Government's acceptance of it. I would unequivocally say that if something like Clause 17 remained part of this Bill, the super-affirmative resolution set out in these provisions would give significant protection and significant retention of the scrutiny of Parliament in relation to the implications of Clause 17. I would therefore be more welcoming of these amendments than is the noble Lord, Lord Howard of Rising.



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The fact remains that Clause 17 raises anxieties that are well beyond the areas we have already discussed. One of the original justifications from the Minister's department for Clause 17 having the wide range that it did was that Clauses 4 to 16 dealt only with unlawful peer-to-peer file sharing. As a result of the post-consultation amendments to the legislation put forward by the Government, those clauses potentially apply to all forms of copyright infringement. I queried that at an earlier stage and I still think it would be better, since the procedure relates to unlawful peer-to-peer file sharing, if it were more narrowly defined in those earlier clauses. However, if it is not to be, one of the main justifications for the wide range of Clause 17 disappears.

I re-declare my interest as chair of Consumer Focus. We know that worldwide there are always pressures from different forms of copyright owners to extend the powers and rights of copyright holders. There are international and European negotiations current in those fields. In the European context, there are proposals for extending certain forms of copyright which, unless they are attached to a fair-use provision, the consumer organisations nationally and at European level by and large oppose. Could Clause 17 be used to bring those into national law? In a more sinister way, there are also discussions on a world-trade basis under the ACTA provisions about changes in copyright protection in the trade context. By definition, those trade negotiations are not transparent or open. We do not know what will come out of them and what might need to be transposed into national law.

If Clause 17 were used for all sorts of copyright protection in that context, it would undoubtedly be a Henry VIII use of powers. It is not connected to other purposes of this Bill and it would undoubtedly mean that the powers implied in Clause 17 could be used for very wide purposes. I would like the Government to place on the record a denial that Clause 17 could be used for those purposes or for the purposes of extending copyright protection and patent protection more generally. It did not relate to the main purposes of this Bill or the main strategy of Digital Britain. I hope that the fears that are being raised by the wide-ranging nature of Clause 17 can be allayed to some degree. I also agree with the noble Lord, Lord Howard, that, in relation to aspects of Clause 17 and the need to keep up with technology, the Government are justified in having easier and wider-ranging powers but they need to define them significantly more narrowly than is done in Clause 17.

The view of the Delegated Powers Committee would normally be taken very seriously by the Government. When I was on the Front Bench, every time such a castigation came from the Delegated Powers Committee we automatically rolled over. I hope that the Minister and his colleagues will do the same on this occasion and come up with a more acceptable form of Clause 17.

I am not clear whether, had the super-affirmative procedure existed in the 1530s, His Late Majesty Henry VIII would have been inhibited by it or indeed whether it would have inhibited his Minister Thomas Cromwell, who more or less occupied the same position as the noble Lord, Lord Mandelson, does at present. In

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today's age, the provisions in these clauses would be a bit of a break but it would be much better if the clause itself were more narrowly defined in the first place.

Lord Fowler: My Lords, the noble Lord, Lord Puttnam, referred to the report by the Select Committee on Communications, The British Film and Television Industries-Decline or Opportunity?. I say, slightly counter to what the noble Lord has just said, that a great deal of the evidence that came to us from those industries showed their deep concern about what was happening on file sharing. This cannot be cast to one side-it involves not just the film industry but many other areas as well. There is legitimate concern out there. The noble Lord, Lord Puttnam, asked me to state that.

Our attitude is that, because of that concern, we supported the Government's decision to introduce regulatory measures to combat unlawful peer-to-peer file sharing. We also went on to say-this was raised earlier this afternoon by the noble Lord, Lord Lucas, in one of his many interventions-that we welcomed the decision of some companies in the audio-visual industries to change their business models in order to meet the legitimate demands of their customers while generating returns on their investment in content. Those two things went side by side; I reiterate that today. The music industry, for example, has taken those words to heart.

This House has to face the fact that threats change and develop and that new threats come along. We cannot simply close our eyes to that and say that there is no way of combating that. The UK music industry supports Clause 17; we cannot ignore that either.

I heard about the ability we might have to introduce new primary legislation. We need to be careful about that. Camcording crime is a new threat-the threat of illegal camcording. There is no question about the illegality of that. There is no question that people are exercising their freedom in some peculiar way. It is organised crime. People are going into cinemas, making recordings and selling those recordings. They even have tripods and are highly organised. I have not yet, though I undoubtedly will, heard any serious defence in this debate of that practice.

At the moment, however, the legal position is anything but clear. I asked the Minister what the Government's attitude was. He said they were taking advice but I shall tell him. The Government's attitude is that they are waiting for a test case under the Fraud Act 2006. This questions the argument that new primary legislation can be brought in quickly and be put into effect. Certainly no new primary legislation has been put into effect here. Perhaps the Government do not consider that to be very important, but again I have to say that the film industry regards it as extraordinarily important.

6.30 pm

There is still a lot in the clause to be debated before we get to Report and to serious decisions on it, but we have to face the fact that there is a continuing and changing threat to some of the most important creative industries in this country. We must recognise that because our creative industries are some of the most successful in the world and we want them to develop.

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That is the whole purpose, surely, of what we are trying to do in this area; we are trying to help those industries. At the moment, the balance in this debate-I have felt this for several days now-is being tipped entirely the other way and we are giving all kinds of succour to those who do illegal things. I hear what people say about that and I respect it, but it would be very unwise of this House to give the message that it condones illegal actions in any way.

I in no way, shape or form throw to one side the important constitutional arguments of my noble friend on the opposition Front Bench. They are important arguments and we need to consider them very carefully. I rather doubt whether swift new primary legislation at every stage will be the answer, but we must find a sensible practical solution that will satisfy not only the public and public rights but the industries. I say again that the film industry and the music industry-and television, for that matter-are vital for this country, and we should support them. If we find defects in the clause, okay, let us look at them, but we also need to find a solution or we will let those industries down.

Lord Puttnam: I promised the last time I spoke that I would not delay the Committee on this issue, but I want to assure the noble Lord, Lord Howard, that I am not remotely interested in impinging on the dignity of the House or of Parliament or on the processes that we use; I am trying to draw attention to the fact that, in a very fast-moving technological area such as this, there is sadly a discontinuity between the speed of change and the matters that we must address and the processes that we currently utilise in Parliament. I hear what the noble Lord says about pushing through legislation quickly, but in my experience it is very difficult to do.

I know that the super-affirmative procedure is clumsy-we do not pretend otherwise; it was the only means that we could find to raise the issue-but Parliament has a duty to itself to look at the nature of the threats, the problems, the pace of change, and its own processes, and to try to pull these things together. I think that that is what the noble Lord, Lord Fowler, is referring to. It would be good if the House as a whole could come to that conclusion. We may not be able to crack this problem, but pretending that it will not come back and haunt us time and again is not doing ourselves justice. I hope that those on the Liberal Democrat Front Bench will agree and bend their very fertile minds to possible solutions. The present situation is a mess, and it is foolish to pretend that, somehow or other, primary legislation is the way through. It is not.

Lord Lucas: My Lords, I have a lot of sympathy for what the noble Lord, Lord Puttnam, says. This is an area in which there is an advantage in being able to be flexible and move fast. I like the super-affirmative system; it allows for outside contributions and proper consideration, which we should allow for in our own legislative processes on occasions. The House of Commons took it up recently in Committee on the Education Bill when it took outside evidence as the first part of that process. We are lagging behind on that, and ought to make up the distance.



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My objection is to Clause 17's underlying breadth, which the noble Lord, Lord Whitty, outlined extremely well. Yes, there is a purpose subsection at the beginning, but noble Lords who have read the Evening Standard for the past few days will have discovered that Westminster has decided to extend paid-for parking until midnight from about a month's time to deal with problems that it anticipates during the Olympics-as if people will park in central London to get to the Olympics. Fortunately, we also have the background document, which says that this is actually entirely to do with raising money. None the less, it shows the extent to which a purpose subsection can be used.


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