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(1) Where an information society service is provided which consists of the provision, creation or truncation of a hyperlink to content or activities provided by a recipient of the service, the
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(a) the service provider-
(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and
(b) the recipient of the service was not acting under the authority or control of the service provider.
For clarification, and for the purposes of regulations 17 to 19A, an "information society service" shall include a service provided for free where such a service is provided at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service.
Regulations 17 to 19B shall apply from the day on which the Digital Economy Act 2010 is passed in relation to all forms of civil or criminal liability, whether or not such activity or content was illegal or actionable at the time of the coming into force of these regulations.""
Lord Lucas: My Lords, these provisions are all together in this amendment just because they would amend the same set of regulations. The first part I leave as a suggestion to the Minister as to one way in which he might seek to deal with the problem, which we have discussed before, of how libraries, internet cafés, Swindon and other such places might deal with the liability that the Bill potentially imposes on them.
The second part takes a similar opportunity to clarify the potential liability of search engines, which, by the nature of their job, link to infringing materials that fall under the Bill. Nine European Union states currently provide an explicit exemption from liability for search engines. That does not include us. I think that it should.
The third part clarifies the application of safe harbours in the e-commerce regulations to information services provided not for direct consideration-that is, search engines, social networking sites and public wi-fi services. Currently these qualify for protection only if normally provided for remuneration, which has caused a great deal of uncertainty. I do not see why such institutions should be discriminated against in favour of commercial business.
Lastly, the fourth part of the amendment is intended to ensure that the safe harbour regulations in Regulations 17 to 19 apply to new criminal offences created after the regulations came into force. This would be an umbrella provision that would catch all future such criminal offences rather than their having to be provided for each time such a criminal offence was created. I beg to move.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Young of Norwood Green): My Lords, this clause seeks to make significant changes to the implementation of the EU electronic commerce directive. This was not an
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The amendment attempts to do a number of things. First, by the amendment to Regulation 17 of the e-commerce regulations that implement the directive, the regulations would specify that limitations of liability currently available to mere conduits should apply specifically to wireless networks-the noble Lord's new definition. I believe that the current term encompasses the noble Lord's new definition and that therefore this new provision is unnecessary and, indeed, would confuse the intention to deliver a wide interpretation of the networks to be covered.
Secondly, the amendment would specify that the limitations on liability should apply to search engines, hyperlinkers and aggregators. The Department for Business, Innovation and Skills, in an earlier incarnation, consulted on the possibility of amending the regulations to make it clear that these activities were subject to the limitations of liability granted by the directive. The result of that consultation was that there was not a strong case that we should do so. We believe that it would be wrong to make these changes now without further consultation with all relevant stakeholders.
Thirdly, I note that the next proposed amendment is designed to clarify the scope of the regulations to cover non-commercial services. While the main thrust of the directive is to harmonise the regulation of those services provided for remuneration, it is clear from the recitals to the directive that the scope of the directive covers a wide range of economic activities extending to services for which the recipient does not pay, such as online information. I refer noble Lords to Recitals 17 and 18 of the directive. I understand that there are cases before the European Court that will help to refine the scope of the directive. It would be rash to consider such amendments while such cases are in train and before the court has reached its conclusion.
Lastly, the amendment would give prospective effect to the limitation of liability in the directive. That means that the limitation should be applied to all future legislation, not simply to legislation that had been enacted before the regulations came into force in 2002. This aspect of the implementation of the electronic commerce directive has been the subject of much discussion with the industry. There are attractions to the idea of prospective effect but also merits to the industry of the approach that we have adopted of creating bespoke implementation of the limitation of liability, which is specific to the legislation in question. Moreover, we have serious concerns about the danger of unintended consequences and the potential uncertainty of prospective effect. I hope that the noble Lord will consider withdrawing his amendment in the light of that explanation.
The Earl of Erroll: This is a prime example of exactly why we need properly to revisit the Copyright, Designs and Patents Act 1988 for a full parliamentary discussion about the Act's ambit and how it should cover things in a digital age. I see why the Minister does not necessarily want to put this into the Bill, but it is something that should be addressed.
Lord Lucas: It is wonderful the way in which some things, particularly little things, take a lot of consultation while Clause 17 can be invented on a whim; it did not seem to appear anywhere in Digital Britain when I read it. However, I have received a satisfactory answer to my amendment and I beg leave to withdraw it.
Nothing in any procedure provided for in sections 4 to 17 shall prejudice the ability of an individual author or, as the case may be, performer to bring an action for breach of copyright or a moral right, nor to recover costs in such actions."
Lord Howard of Rising: My Lords, I move the amendment in the name of my noble friend Lord Bridgeman. These provisions should certainly not be taken to prejudice the right to bring legal action. I hope that they will reduce the need to bring such actions, but that is not the same thing as impeding or preventing legal action. I would welcome any reassurances that the Minister could give the Committee on this subject.
Lord Davies of Oldham: My Lords, I am sorry that the noble Viscount, Lord Bridgeman, is not here to move the amendment himself as he and I were on the point of discussions about the issues that concern him. He had obviously not anticipated the extraordinary and most welcome progress that we have made, thanks to co-operation on all sides of the Committee today.
The answer to the amendment is that I can give assurances. We understand the concern and it is right for us to be reminded that in the part of the Bill that deals with copyright owners, internet service providers and subscribers, we should not forget the people who create material in the first place, whether they be photographers, musicians or film-makers. Of course these creative people have rights and may be copyright owners. It would be fair to say that the focus of the provisions in these clauses is on the investors in copyright, the creative industries, rather than on the creators themselves. I am sure, though, that we recognise that the whole structure of the creative economy is founded in large part on individual creativity.
I reassure the noble Lord, and I hope that he will take these reassurances back to his noble friend, that there is and can be nothing in this part of the Bill that would prejudice the rights of authors and performers in the way described. If an author or performer is also a copyright owner, their ability to protect their copyright will be enhanced, not restricted, by these provisions. They will not affect any contractual arrangements that they may have with their publishers. On moral rights, I assure the noble Lord that their current status and position will not be affected by these clauses, and we would in any case be constrained from doing so by European and international agreement. I hope that those reassurances will prove satisfactory.
Lord Young of Norwood Green: My Lords, before speaking to these amendments I will say a few words about the Government's intentions regarding the powers contained in Clauses 18 to 20. The Government decided to seek these reserve powers because the domain names system is a crucial element of the internet economy. Domain name registries themselves have a key role in making sure that the system runs smoothly. Any disruptions could have adverse effects on business, consumers and internet users as a whole.
For most people, the sort of disruption we have in mind manifests itself in the misuse of domain names. The domain names sector in the UK is self-regulated and it has worked well for many years. The Government's intention is that self-regulation by domain name registries should continue: we want to be absolutely clear about that. The reserve powers we are seeking in the Bill will enable the Government to intervene if things start to go wrong, with self-regulation clearly failing.
The Government recently published a factsheet which I hope provided your Lordships with a bit more clarity on the circumstances in which the powers might be exercised. I know we will be covering the enforcement aspects of these powers when we examine Clauses 19 and 20, so for now I will not say anything more about this.
I turn to the amendments in question. Following representations made by the industry, the Government realised that the scope of the domain name provisions in the Bill could have unintended consequences. Specifically, the definitions in Clause 18 as currently drafted would bring any organisation or company in the UK that runs its own name server within the scope of the powers-that was not intended. Similarly, the UK-based domain name registry operations of some third countries are also caught. Again, that is not what the Government had in mind when they proposed this draft legislation.
The effect of the amendments tabled by the Government is to restrict the scope of the powers to cover just those top-level domain registries where the domain is clearly UK-related. That is where, in the opinion of the Secretary of State, the last element of the domain name will cause internet users to believe there is a connection with the UK or part of the UK. In practice, this will include the existing ".uk" and ".gb" domains, and indeed any future proposals ICANN receives for new domains which it approves-such as ".london", or even ".britfishshops". I am sure noble
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Finally, the Government have tabled a minor amendment, Amendment 223C, to the definition of an internet domain registry so that the text correctly refers to "internet protocol addresses". This is definitely one for the cognoscenti. I do not think this requires further explanation. I beg to move.
The Earl of Erroll: I am quite involved in this world and I probably ought to redeclare something I declared earlier in the Committee stage. I have been sitting on the Nominet policy advisory body for a number of years. I do not receive any remuneration for it so I have no financial interest in this at all, but I have been involved in many of the discussions around this area. I can see exactly what the Government are getting at. Just as they made a general comment at the start, I should like to make the following general comment. I can see exactly why the Government want to take these reserve powers. I, too, regard the .UK domain name as a UKplc asset. I am not sure that we would have ended up with the governance structure that we have if we had realised way back, when this was all set up under an exchange of letters with ICANN, that the internet would become so important. I welcome the Government's provisions in this area. The amendments that I have tabled seek to make them either more flexible or to tweak them very slightly. They do not seek to alter the Government's basic intention. Therefore, I welcome this set of amendments. I was concerned that someone who was with a registry that had nothing to do with the UK might be caught up by this. Therefore, I think that this is a very sensible set of amendments.
It is probably worth flagging up that certain issues may arise. For instance, I believe that proposals have been floated to have a .Scot top-level domain. The question arises whether that concerns Scotland or the worldwide Scottish diaspora. We can have a hefty argument about which it concerns. However, .Scotland would clearly relate to a part of the UK. The same would apply to .Cymru, .Wales and .Welsh. Therefore, arguments could arise in the future about the finer points of this. I like the idea of .fishshops. Would "sh" appear twice in the middle, or not? There is a phishing opportunity there.
Lord Clement-Jones: My Lords, the government amendments were welcome, but I want to clarify the position. Certain domain registries-I think particularly of Telnic-expressed in correspondence their concern about the width of Clause 18. I want to tease out from the Minister information about the .tel domain, which is a London-based registry operator but provides a global service to citizens and businesses of all nations under the .tel domain name. I suspect that that is exactly what the government amendments are designed to exclude, so that the measure will deal just with .UK and .GB. However, it is extremely important that that is clarified. By the same token, it is interesting to ask, what control or influence do the Government have in other respects? There is what is called a geo domain,
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Lord De Mauley: My Lords, I thank the Minister for tabling these amendments. However, as the noble Lord, Lord Clement-Jones, said, concern has been expressed to us, and no doubt to other noble Lords, about the potential for these powers to be applied to all domains, not just the t.UK domain, and perhaps some of the other domains to which the Minister has referred, for which they were intended. The purpose of our Amendment 225BA is rather in line with that of the noble Earl, Lord Erroll; namely, to probe the Government to establish just how wide the new drafting could be taken to be read. There is still concern that the words "UK-related", as used at line 13 of government Amendment 225B, could be understood by some intent on stretching these provisions to their maximum, as meaning any registry, with however loose a connection with the UK. The government amendment uses the words,
I suspect that this goes rather wider than the Minister intends. Will he consider improving the drafting to make the measure clearer? I see the difficulty, but spreading the jurisdiction too wide, either intentionally or, indeed, unintentionally, could, we suggest, create some unforeseen problems. He, of course, has at his disposal officials with formidable drafting skills.
Lord Young of Norwood Green: My Lords, I thank the noble Earl, Lord Erroll, for his constructive comments. We know what he says about .scotland. The noble Lord, Lord Clement-Jones, sought confirmation about whether we would be covering .tel. The answer is no. The domain .tv is not covered either.
I am grateful to the noble Lord, Lord De Mauley, for tabling the amendment. As I understand it, the intention behind the amendment is to remove the definition of what is meant by a UK-related domain. As I have just explained, this wording has been proposed so that it is clear-UK-based registries of other country code domains are not covered by the powers.
The definition will provide necessary common-sense clarity to the industry as to what might be considered UK-related and will ensure that the powers will only be available to the Secretary of State if internet users are likely to believe that a domain has a connection to the UK.
Lord De Mauley: My Lords, Amendment 215 is a very simple one. Its purpose is to ensure that if a notice has been received by a registry it will have a reasonable length of time to prepare and make representations to the Secretary of State. The effect of being given this reasonable length of time, combined with the threat of government intervention might well prod the registry into taking steps to put things right, thereby saving much trouble and expense. I beg to move.
Lord Davies of Oldham: My Lords, we are fully aware of the need to give a domain name registry enough time to consider properly any notification by the Secretary of State of serious failure by the registry and to formulate any representations it wishes to make to the Secretary of State. I am therefore grateful to the noble Lord for giving me the opportunity of clarifying the position.
In practice, a registry will have been well aware that the Government were concerned about a serious failure of that registry long before receipt of formal notification by the Secretary of State. Informal approaches to the registry will have been attempted and exhausted before any decision to exercise these powers. Furthermore, before the Secretary of State can notify a registry of a serious failure he must have prescribed the specific practice or requirement that constitutes a failure. In the normal course of events, a full consultation will have taken place prior to prescribing practices or requirements under Section 124N(3). Therefore the registry should be well aware of the serious failure long before it receives a notification from the Secretary of State.
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