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At the same time as outlining our objections to Clause 17, we made it clear that were the Government to come forward with concrete proposals to amend either the Copyright, Designs and Patents Act or the Communications Act for specific purposes, we would support them. However, there was a deafening silence from the Government. It has become apparent that there are particular threats from sites-cyberblockers hosted abroad, particularly in Russia. It is clear that infringement is taking place in both peer-to-peer and non-peer-to-peer environments. File-sharing is only one part of the problem. It has become clear that the Digital Economy Bill needs to include measures to deal with non-P2P infringement. About 35 per cent of all online copyright infringement takes place on non-P2P sites and services. We need to tackle an existing problem where there are websites that consistently infringe copyright, many of them based outside the UK, which are beyond the jurisdiction of the UK courts.
Rather than "future-proofing", we need "present-proofing". We have therefore devised a proposed new Section 97B for the Copyright, Designs and Patents Act 1988. Amendment 120A is designed as a specific alternative to the blanket nature of Clause 17. The proposed new clause makes explicit what is already implicit in the CDPA. Currently, Section 97A provides for injunctive action against service providers. That section was added as a result of the e-commerce directive of 2001, now implemented across the EU. The amendment would specifically allow the High Court to grant an injunction requiring ISPs to block access to sites where there was a substantial proportion of infringing material that is either hosted by the particular site in question or accessed through the particular site. The injunction would be granted only where rights holders had first requested ISPs to block access to the site and when they had also requested the site operator to stop providing access to the infringing material, either by removing the material itself or removing the ability to access it.
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Any concerns regarding Article 6 of the European convention, on the right to a fair hearing, are dealt with by the fact that the service provider would be a full and active party in the proceedings. Equally importantly, the site operator will also be served with notice of the injunctive application. There is an explicit reference to human rights implications being taken into consideration by the courts in the new clause. This remedy would stop the supply of illegal content by blocking it at source. There are several websites, many of which are based outside the UK, which refuse to stop supplying access to illegal content-indeed, whose business plan depends on supplying illegal content. At the moment, it is not explicit what can be done about such sites. This site-blocking remedy would give rights holders an explicit, swift recourse to court to block access to those sites. It is very straightforward for a party to avoid an injunction by this remedy-simply remove the infringing part of the publication permanently or temporarily pending investigation.
The amendment addresses many of the concerns expressed about Clause 17. It moves the decision-making to a court rather than the Secretary of State and thereby affords the ISP the opportunity of the six months deadline for the creation of the code to be extended. It contains two clauses that would have the effect of deferring the provisions of new Section 97B coming into force until the notification process is complete. There is already a remedy under Section 97A of the CDPA, which grants copyright owners a broad power to apply to the courts for injunctive reliefs. This amendment does not seek to replace that section, but enhances that power by giving copyright holders a more clearly defined relief with respect to the blocking of infringing sites. I commend this amendment to the House as a more proportionate, specific and appropriate provision than Clause 17, and I hope that the Minister will take a similar view.
The measure confines itself to site blocking. It is a less dramatic change to the copyright Act than originally envisaged by the Government. It amends the Act simply by introducing new Section 97B. It would sit below and build upon the existing Section 97A, which currently provides for rights holders to apply for unspecified injunctive relief to deal with copyright infringement. Finally, it provides against rights holders returning to the court as a substitute for developing innovative and legal services. The court can have regard to whether the copyright owner has made reasonable efforts to facilitate legal access to the content.
The Government, with whom we have had some discussions, have said that they are opposed to this measure on the grounds of national security objections. We are told that there may be problems for national security in site blocking. We have again explicitly tried to ensure that these concerns can be taken into account by a court when granting an order. The amendment makes provision for the court to have regard to any issues of national security raised by the Secretary of State. Furthermore, if the injunction was exercised with regard to only a handful of sites a year, it would be unlikely to trigger the mass defection to encrypted sites that may be at the root of the Government's concerns.
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Site blocking is not a new phenomenon. It is used with great success in other spheres to restrict access to sites hosting illegal content. The most well known is the recommended list of sites to block provided by the Internet Watch Foundation. A direct analogy is obviously difficult given the content that the IWF monitors-child sexual abuse content hosted worldwide and criminally obscene and incitement to racial hatred content hosted in the UK-but the important fact is that sites are routinely blocked. Recently, in response to a Parliamentary Question on the blocking of websites identified as containing illegal images of child pornography, Alan Campbell MP, Parliamentary Under-Secretary of State responsible for crime reduction said:
"The Government regularly receives representations relating to blocking, from different sections of society. The Government discusses issues relating to child protection, including blocking of websites containing illegal images, with a wide range of stakeholders.
The Government are clear that the use of blocking to prevent access to such images is something that internet service providers should do, and the Government have been very pleased with the response from the internet industry".-[Official Report, Commons, 2/11/09; col. 692W.]
I think that speaks for itself.
In addition, at the end of last year, an operation by the Met's e-crime unit resulted in more than 1,200 websites being shut down or effectively frozen. Access to these sites, which were selling counterfeit goods, was denied. I said earlier that the Government have raised the objection that the proposal, if it became law, would require notification to the European Commission under the technical standards directive. We believe that the explicit reference to the time delay required in order to comply with the EU technical standards directive cures that problem. I commend the amendment to the House. I beg to move.
4 pm
Lord De Mauley: My Lords, I thank the noble Lord, Lord Clement-Jones, for tabling Amendments 54A and 120A. The many objections to Clause 17 were made perfectly clear in Committee, but while the Government's amendments are an improvement, they do not take account of the fundamental objection that the Government are asking for a power for which they cannot explain the need or how it will be used. This is quite extraordinary, given that there is clearly a growing problem with online copyright infringement via sites streaming copyrighted material.
The Government were astonished to find that Clause 17 might be used to address this issue. Nevertheless, they appeared to agree that setting in place arrangements for blocking sites that make unlawful material available might be an acceptable alternative. Unfortunately, discussions between the Government and the Opposition have not resulted in an amendment on which all sides can agree. The sticking point appeared to be the security services, as the noble Lord, Lord Clement-Jones, has explained. We on these Benches have therefore worked with the noble Lord and his party to address that concern, and our amendment would insert the consideration of national security, thus ensuring that, if these concerns are indeed justified, the Secretary of State can intervene to ensure that there are no unintended consequences from injunctions being granted. We will obviously keep such considerations under close review.
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We support Amendment 120A as an alternative to Clause 17, and hope very much that the Minister will agree to accept it as a necessary solution to a growing problem.
Baroness Howe of Idlicote: My Lords, this is an interesting idea which, theoretically anyhow, we should consider very seriously. I hope the Minister will do so.
Lord Lucas: Will the Minister comment on his amendments in this group so that I can comment on them as well as on this amendment? I encourage him to do so.
Lord Young of Norwood Green: I am resisting getting up unnecessarily because I have problems with my hip, so I hope noble Lords will understand that I do not mean to be impolite when I nod in the affirmative.
Before I speak to the amendments, it is worth my recalling what gave rise to Clause 17. The clause provides a framework within which to address future issues of online copyright infringement. It is the most effective and proportionate way to ensure that we do not have to react continually to crises but can consider and act within specified limits if-I stress this-Parliament agrees.
Online copyright infringement is estimated to cost in the region of £400 million per year. In addition to lost sales, this acts as a significant dampener on the ability of the creative industries to build new commercial online models due to their inability to compete with free online copyright infringement. This is a threat to the ability of an important part of the UK economy to modernise and develop.
We live in a time of rapid technological change in which new ways of online copyright infringement can come to the fore quickly, and we need to be able to respond quickly and flexibly. We cannot be completely confident today which nascent threats will become sufficiently serious to require consideration under Clause 17. I give three examples: programs that allow streaming services, such as Spotify music or video such as BBC iPlayer, to be permanently downloaded, thus contravening the terms of access to those services; programs that overcome digital rights management technology, such as stripping music tracks from music videos; and types of aggregators that could create conditions for infringing behaviour.
Clause 17 requires a rigorous process to be undertaken, but it might be used to strengthen existing provisions on digital rights management, which might help to counter threats of stream-ripping or video-to-audio conversion, to clarify the legal status of metadata when used to convey the wishes of a copyright owner regarding material that is later subject to civil infringement, and to support rights-holders' actions against online copyright infringers either by helping with the process or by assisting efforts to educate consumers. I hope these examples illustrate the breadth of the problem with which we need to deal.
Amendment 54A, moved by the noble Lord, Lord Clement-Jones, highlights the potential impact that Amendment 120A might have on the operation of the detailed provisions that we are setting up in Clauses 4
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First, the provisions would need to be notified to the European Commission under the technical standards directive. Although I accept that the drafting attempts to deal with this, we are clear that even the creative solution offered by the noble Lord, Lord Clement-Jones, in subsections (6) and (7) of the proposed new clause in Amendment 120A would not count as notification in draft. Without the proper three-month notification, the provision would not be enforceable.
Secondly, I do not think that it would be sensible or appropriate to adopt this approach today. Blocking access to websites is an enormous step. It is worth noting that many and possibly most sites containing infringing material will also contain legitimate material. Finding a way of blocking infringing material without impacting disproportionately on legitimate uses is likely to be difficult. Simply leaving it to the courts to do that without any guidance or assistance does not seem sensible.
However, the trickiest issue is likely to be around sites that link to other sites that would be caught by this proposed clause but which do not have any control over or even knowledge of the content to which they link. That could lead to search engines being on the wrong end of a blocking order, something which I think will cause significant public disquiet. In my view, people would be right to be worried, since we have only the most basic understanding of the potential consequences of such a clause.
The noble Lord, Lord Clement-Jones, implied that this would provide a simple solution-would that that were the case. He rightly referred to the activities of the Internet Watch Foundation list. We see that as a very different situation. The core offenders of child abuse imagery are a very small proportion of the population and the list affects only a small number of sites. Due to the penalties and stigma involved, the offenders do not advertise their techniques, and they practise evasion techniques which make them very difficult to detect. However, it is important to prevent accidental exposure to what is globally recognised as offensive content, the very presence of which continues to abuse victims.
This is a very different strategy to tackle a different problem. It is not comparing like with like. We estimate that as many as 6 million or 7 million people may be infringing copyright online, and probably thousands of sites are involved. The adoption by 6 million or 7 million people of evasion technologies would be a very substantial change in internet user behaviour and you cannot compare that to the small number of sites to which the noble Lord, Lord Clement-Jones, referred. This is a serious step and we should make sure that if we are going to make analogies, they can stand examination and scrutiny. With due respect, I do not believe that the analogy quoted by the noble Lord, Lord Clement-Jones, can stand that scrutiny.
Despite everything that the noble Lords, Lord De Mauley and Lord Clement-Jones, rightly said about scrutiny, accountability, fairness to subscribers and
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I also note that the amendment refers the court to consider any issues of national security raised by the Secretary of State. I say candidly that that misses the point. The security concern felt by the Government and the intelligence and law enforcement agencies is not about particular acts of site blocking but about the impact that site blocking would have in changing public behaviour. That point has somehow been overlooked-I will not say "conveniently overlooked", because I do not dispute the genuine attempts being made here-in a way that would make it significantly more difficult for the intelligence and law enforcement agencies to do their job effectively. For that reason, I strongly urge the House to think and reflect very carefully. I believe that we should reject this amendment.
Although it is possible that a clause along these lines might be a useful and appropriate way of tackling some forms of copyright infringement, this amendment is not it. We should not act precipitately in a matter that would so significantly impact on internet users and the digital economy. We have never said that there might not be a case for site-blocking. However, this approach, without consideration and consultation, is not the right way to apply it.
It may be an understatement to say that my comments might not be popular with noble Lords who have put their name to the amendment. However, Clause 17 would give us the opportunity to look at the issue properly and to give Parliament every opportunity to scrutinise the evidence and the terms of any order, thereby holding the Government to account. Surely this is a much better approach and is much more likely to yield effective results. I must therefore ask noble Lords to consider the matter carefully and not press their amendments.
I come last, but by no means least, to the government amendments. A number of your Lordships rightly expressed concern about the breadth of the power in Clause 17. We agree with the assessment of the Joint Committee on Human Rights that there is a delicate balance to be struck between the right to freedom of expression and the property rights of copyright holders. The checks and balances in Clause 17 allow us to strike that balance. The Government have listened to the concerns raised and, in Committee, proposed substantial amendments which clarified the power's scope and strengthened the safeguards surrounding its use. They do so in four ways: first, by making it clear that the power is targeted and may be used only to tackle infringement, and only in a way which is appropriate and proportionate-we have narrowed the scope; secondly, by providing a threshold in terms of serious adverse effects, which is sadly lacking in the noble Lord's amendment; thirdly, by making it clear that the
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For the life of me, I still cannot understand the analysis of the noble Lord, Lord Clement-Jones, that that is not a protection. It provides accountability in both Houses, and it gives both Houses the right to reject if they do not believe that a government proposal is appropriate. The noble Lord has not denied that. The super-affirmative procedure provides that the Government must have regard to resolutions of either House and to the recommendations of a committee of either House that is charged with reporting on the draft order. That is accountability. As I said in Committee, a balance has to be struck between the competing needs for careful and measured consideration of any action and for the ability to act quickly when the occasion demands. It is absolutely right that Parliament should have enough time to consider properly any proposed use of the power. The use of the super-affirmative procedure will provide for this.
We are supplementing that through new amendments. First, we have listened to concerns about the breadth of the clause. Amendment 113 makes it clear that the scope of amendments to Part 1 of the 1988 Act is limited to Chapter 6 of Part 1 of the copyright Act. It clarifies that the clause can be used only to make enforcement of rights easier or more efficient, not to define what constitutes copyright infringement. Secondly, the amendments require an independent report to be submitted to Parliament on whether the infringement about which concerns have been raised is having a serious and adverse effect on businesses or consumers. Thirdly, the amendments prohibit the clause being used to require payment of any sum other than that required to cover the cost of the performance of the function.
The amendments will ensure that the breadth of Clause 17 is properly defined and that Parliament is properly able to consider the evidence and any order made under the power. As a result, the clause will allow us to respond quickly and flexibly to adverse developments that affect our vital creative industries. I strongly urge the House to reject the amendments tabled by the noble Lords, Lord Howard and Lord Clement-Jones. Their intentions may well be honourable, but their proposals are unfortunately not appropriate and will not solve the problem. I hope the House will reflect further and agree with the Government's amendments, which give us both proportionate and flexible power.
4.15 pm
The Earl of Erroll: My Lords, I shall comment on all the amendments in the group. The Minister will be surprised to hear that I agree with him. I still do not like Clause 17 and shall support Amendment 121, which would remove Clause 17. I believe that the super-affirmative procedure leaves too much of the power with the people drafting the statutory instruments and removes powers from this House unnecessarily. I would like to see at an early stage in the next Parliament a proper review or rewrite of the Copyright, Designs and Patents Act to sort this issue out. That is well overdue in the digital age. It would be the proper way
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Given the choice between the government amendments and Amendment 120A, whose paving amendment is Amendment 54A, I would prefer the government amendments, for all the reasons that the Minister gave. As he said, Amendment 120A is full of honourable intentions but it is also full of unintended consequences. That is my real problem with it. We have to remember that the Bill does not just deal with streamed video, film and music. It also involves text-it can be applied to ordinary short text and brief things like that. What do search engines do? They search text and reproduce it in an aggregate form so that you can find what you are looking for. That means that, almost certainly, all search engines will be infringing from day one. It will not take people long to find some infringements. You can just see the legal wars between the big boys and the little boys-of course, the big boys will probably win in the High Court.
That leads me to the next issue, which is the cost of the defence. This will go to the High Court, but until it does we will not know whether we really are talking about a substantial proportion of the content and what would qualify. We will face the old situation in which ACS:Law and others threaten people with huge costs in court unless they roll over and give lots of money up front, so that people end up settling out of court. The problem is the cost of justice, which is a huge block. We have to remember that.
We have dealt with the fact that we need to know that people own the copyright before they take a case to court. There have been a huge number of amendments, from the noble Lord, Lord Lucas, in particular, saying that we need to know that people really are in a position to take a case to court. Well, we will not know until it has got to court. There is no requirement that people should show evidence up front that they own the copyright, so we certainly need to consider that.
I have not got my head around the status of orphan works and the problems that may face the British Library and other libraries or the collecting agency if it ends up managing orphan works. Will they get the right to say that something is in copyright? That will need to be looked at.
I discovered last night that Queen Mary, University of London, is in effect like an ISP. It has three security people overseeing a system of 20,000 connections. People come and go, such as students coming over here and lecturers on attachment. Three people cannot hope to manage all that. The college will of course have lots of material for research on its servers. I should think that most of that is bona fide, but what if one of the researchers has breached copyright in the way in which he has put up material that he thinks is relevant to his research? I can see that being taken down.
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