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I can see the point of Amendment 120A. It is a clever way of trying to ensure that we do not go too far in Clause 17, by replacing it. However, this is too

3 Mar 2010 : Column 1464

late a stage to insert it. This needs to go out to the whole industry for discussion first, so that we can find all the pitfalls. I have described the pitfalls that I spotted in 10 minutes of reading on this Bench. If I can do that, what could the whole industry do?

Government Amendment 113 would amend the heading to read "Power to amend Chapter 6 of Part 1 and this Part". I need a legal opinion on this, but does that mean that the Minister can use this part to remove Chapter 6 and then do what he likes? I am not sure whether laws can be used retrospectively in that way.

Apart from that, I prefer the government amendments to Amendment 120A, because they tighten up Clause 17, but most of all I would prefer Clause 17 to be removed altogether, so I support Amendment 121 in the names of the noble Lords, Lord Razzall and Lord Clement-Jones.

Baroness Miller of Chilthorne Domer: My Lords, I first express my gratitude to my noble friend for bringing this forward in prime debating time because it is an important issue. My main concern with this whole debate is that whatever we conclude here, the other place will not be able to spend any time scrutinising what is actually an incredibly important change in the way that the internet is dealt with.

The Minister almost implied that the Government needed power in times of crisis. This is not a national crisis: this is still a matter of civil copyright infringement. Although I can see that it is important, such changes to the way that the internet is used in terms of filtering and blocking should not be undertaken without the other place having full opportunity to scrutinise them, which they will not have. Therefore, without going into the other technical ins and outs that my noble friend, the Minister and the noble Earl, Lord Erroll, talked about, for that reason alone it would be much neater at this stage to simply remove Clause 17, given that this is not a national crisis. If it becomes very urgent at some stage, the Government can introduce primary legislation that can be properly scrutinised, amended and dealt with.

Lord Whitty: My Lords, I am sorry to enter this debate at a late stage. I have only just worked out that what is now Amendment 120A was Amendment 112 last night. I was alarmed because I did not expect such a radical measure from the Liberal Democrat Front Bench. It raises serious problems, as the noble Earl, Lord Erroll, said, and introduces a novel procedure.

I was not much enamoured with Clause 17 and still have my doubts about it. But it is undoubtedly true that the amendments that the Government have brought forward plus the super-affirmative resolution greatly narrow Clause 17 and make it more subject to parliamentary scrutiny. However, the problem with both approaches is that they are attempting on the narrow basis of what this part of the Bill is primarily about, which is peer-to-peer file-sharing, to build a whole new approach to copyright in the digital age. What is really required-the noble Earl also referred to this-is a more comprehensive approach to copyright protection and its impact on consumers and rights holders in the digital age.

What puzzles me is that that process is being pursued in another part of the Minister's department in terms of a copyright strategy engaging the Intellectual Property

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Office and so forth. There are also developments at European level. At some point within a year or two we will have to return to this to develop a more modern approach to copyright and intellectual property more broadly and relate that to the digital age. In the mean time, the original Clause 17 was far too broad and blunt, but I am afraid that the amendment of the noble Lord, Lord Clement-Jones, also sounds too repressive to me. I will consider where I stand on Clause 17 when we come to it.

My key point is that the Minister needs to consider whether we should take these comprehensive aspects of the Bill away and focus on the narrower area of peer-to-peer file-sharing and return in a more sympathetic and considered way, with-I see that my noble friend Lord Puttnam is in his place-a fair degree of pre-legislative scrutiny about how we approach copyright issues in the longer and broader term.

Lord Lucas: My Lords, I take to heart some of the things that have been said about Amendment 120A, although I admit that I am prejudiced because I tabled an amendment very much along these lines in Committee. My amendment did not excite the Government so much, because they are engaged in laying a smokescreen; they can see that this is a serious torpedo heading towards this bit of the Bill. I do not take seriously what they say about the security services. There is nothing about this proposal that is not also implied by the Government's proposals. If the Government are to go ahead with cutting off people's internet if they appear to be file-sharing illegally, that will result in a substantial migration to encrypted services and other ways round, as it seems to be doing in Sweden.

No additional dangers are presented by Amendment 120A, which, as the noble Lord, Lord Clement-Jones, has said, addresses an aspect of illegal behaviour that was addressed by the noble Lord, Lord Triesman, at an earlier stage, when he talked about what is happening with football. As soon as a match is played, the stuff is there, with a streaming video on the internet and lots of people watching it illegally. Nothing in the Bill addresses that, whereas this proposal would. For those parts of the digital world where an immediate experience is required, this is probably the only way in which to deal with the issue, and it will have to be addressed.

The Minister and others have pointed out that the amendment will need some tweaking. That is not unusual. I have very rarely had anything substantial by way of an amendment accepted by the Government, even if they liked it. It would be a good idea to get this into the Bill so that the Government can set about improving it or giving us an alternative.

This amendment represents the right way forward. It would do something in primary legislation; it would not create a structure that allows the Government to make radical changes through secondary legislation but ensure that things are properly debated and thought out. The objections that the Government raise to this proposal are minor ones, which could be dealt with by adaptations to the fact of the clause being in the Bill, if that is where it ended up. Dealing with the requirements of European legislation is within the capacity of the

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Government, and dealing with the requirement that there be full and proper consultation before the clause comes into effect will be there in other aspects of this Bill. Whether the balance is exactly right in these clauses can be dealt with between now and Third Reading. There is no insuperable objection to incorporating this new clause into the Bill, and I prefer it to anything in Clause 17, even with the admittedly helpful changes made by government amendments.

Lord Puttnam: I ask the noble Lord, Lord Clement-Jones, to clarify one aspect of his argument for me, because I am genuinely puzzled by it. The noble Lord is an experienced lawyer, who has been in this House for a dozen years and seen a great amount of legislation flow through it. He refers several times to the notion that somehow a super-affirmative resolution removes the power from this House, but nothing removes the power from this House as much as its inability to legislate in situations in which there is clear abuse and the very nature of our legislative process makes it impossible to move with sufficient alacrity to deal with issues.

I should have thought that it was much better to work on and improve the process of the super-affirmative resolution to the point at which it becomes a very useful instrument for this House, knowing full well that the process of introducing primary legislation into your Lordships' House is tortuous. The noble Lord has been here a long time, so how much time would he guess it takes to take a problem, turn it into primary legislation and get it through this House? It is probably something like two and a half years. In a fast-moving environment such as the one we are dealing with in relation to the entire Bill, two and a half years is a lifetime. Whether a super-affirmative resolution is right or not, we have to find a better, more effective, more efficient and speedier way of dealing with the kind of problem that the Bill overall is attempting to address.

4.30 pm

Lord Fowler: The point made by the noble Lord, Lord Puttnam, is important and I shall deal with my view on it in a moment. I have some sympathy with the case put by the Minister. I was told that the industry supports the amendment to get rid of Clause 17. I am not sure what part of industry that is. It may well be that Google supports it, but I do not think that the creative industry is speaking in one voice on that. As far as I am concerned, the British creative industry-film, television and musicians-is made up of important people who want to see effective action taken against piracy. I come from a position of having a certain amount of sympathy with what the Government are saying.

As the noble Lord, Lord Puttnam, mentioned, we are told that we should have primary legislation and that nothing would be easier. In my experience of government, that has not always been the case. It takes a certain amount of time to get primary legislation through and it has always been hard fought for by a series of Ministers. My favourite example is camcorder crime, which involves recording the showing of a new film in a cinema and selling it as a DVD. I give the department credit for wanting legislation on that, but

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I suspect that it was unable to do so. It said that it was waiting for the result of the test case under the Fraud Act, which was a very odd argument, given that the department did not even realise that the test case had taken place. In any event, it was held in the magistrates' court on the Isle of Wight. I do not think it had much resonance on the Isle of Wight, let alone in the nation. I need a bit of convincing on that issue.

The noble Earl, Lord Erroll, and I are on the same side for once. It is Clause 17 that we need to address. Whatever the Government say about consultation, the measure will end up as an order which the House can accept or reject, but which it cannot amend. That is a fundamental defect in something that we are doing here. The Minister talks about consultation. Although he was not the Minister responsible at the time, I have to say that we have been down the consultation path before with Ministers from his department. We had what was described as the biggest consultation in history on the BBC charter. It was a major consultation and all kinds of people were asked about their views. The only trouble was that the department took not the slightest notice of the result of the most important part of that consultation. That is why we have the BBC Trust. Virtually everyone told Ministers at the time that the BBC Trust was a bad idea that would not work and would create a divided structure at the top of the BBC. What did the department do? It said, "We are not consulting on that bit. We are consulting on other parts".

I am not content, frankly, to receive only vague assurances on consultation. In far too many parts of the media area we make decisions not on the basis of fundamental debate in this House but on an order, such as on the licence fee, which noble Lords can accept or reject-you cannot amend it in any way-or through the BBC charter which does not even come to this House. I regret that I share many of the feelings of the noble Lord, Lord Puttnam, on that, but I fear that I could not support the idea that we should go ahead and put another accept-or-reject order into legislation. Rather like the noble Earl, I could not conceivably support Clause 17 as it stands.

Lord Maxton: I was not going to speak on this amendment, but the debate has become about the rights and wrongs of secondary legislation, rather than what the Bill is about, namely the digital economy. With due respect to the noble Lord, Lord Fowler, on whose committee I served, he is a Conservative ex-Minister and I spent 18 years myself in opposition in the other place. I have now had to listen to somebody who was in that position talking about secondary legislation when again and again, on legislation that in some ways was more important than this, I had to endure the introduction of secondary legislation. One example was the community charge or poll tax legislation, which was littered with secondary legislation, including orders that were going to be passed in exactly the way that the noble Lord is now objecting to. We are living in a fast-changing technological world and we need powers to change legislation. Maybe my noble friend is right and we need to look at how we deal with secondary legislation, but let us not say that we will not use it in the Bill when we use it in so much other legislation that goes through both Houses.



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Lord Clement-Jones: My Lords, it is time for me to wind up. This has been a very serious debate and I thank all noble Lords who have taken part. I thank particularly the Conservative Benches, both Front and Back, for their support for the amendment. It is greatly valued.

The debate between the noble Lords, Lord Fowler and Lord Puttnam, was extremely important. It is not invalid for a Minister to repent, and certainly not for him to draw on his experience in these matters. One key case against Clause 17 is the fact that an order cannot be amended in these circumstances. Having myself been the victor by the narrowest of margins against an order for the third time since the Second World War, I know how squeaky those debates can be.

I hope that the noble Lord, Lord Puttnam, will look seriously at the amendment. It provides a clear remedy for the creative industries. It is not a blanket like Clause 17: it is designed to assist the very people for whom he is such a powerful champion. Primary legislation need not take two and a half years. If the amendment goes through, the creative industries will have the remedy that it provides rather more quickly than two and a half years.

I will deal with some of the issues that the Minister raised. First, I will say, in response to his passionate speech-it was none the less welcome for that-that Section 97A of the Copyright, Designs and Patents Act 1988 provides similar remedies to that in proposed new Section 97B. It is vaguer and less explicit, and states:

"The High Court (in Scotland the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright".

I could go on with the rest of the provision, but I will not. That is in legislation now as a result of the e-commerce directive. This is not a new, speculative tour de force being proposed by these two Benches, but a realistic new clause building on existing Section 97A.

I say again to the noble Earl, Lord Erroll, whose contributions in Committee and on Report have been extremely valuable, that this is not directed against consumers. This is directed against ISPs that allow copyright infringement to be hosted on Russian websites. I have seen demonstrations from the creative industries, and it is hair-curling how the business models-

The Earl of Erroll: I am sorry to correct the noble Lord, but an ISP gives connectivity to the internet; it does not necessarily host a website. He is objecting to people who host websites. This is not targeted at ISPs, but at web hosts.

Lord Clement-Jones: The wording of the Act and the wording of the proposed new clause relate to service providers. Therefore in practice it is going to be the ISPs, so I correct the noble Earl in that respect.

We are simply building on existing Section 97A. This is not about a blind trampling over the rights of internet users or consumers, but about the rights of creators both large and small. Quite often we have heard noble Lords describe the creative industries as the "big boys". There are small creators as well as

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large creators and the concern on these Benches, and I am sure on the Conservative Benches, is for the smaller creators just as much as for the larger ones. Let us not forget that many of those who have been talking to us during the passage of the Bill represent musicians, actors, film technicians, engineers and the trade unions. All support measures that will stop their members' jobs being affected by copyright infringement. That is of great importance.

I shall deal briefly with some of the issues raised by the Minister. He seemed to demonstrate an enormous lack of confidence in our courts. I have shown that Section 97A, which the Government themselves inserted into the Copyright, Designs and Patents Act 1988, tackles infringement effectively by way of the courts, and this new provision does exactly the same. The Minister complains that there will be no proper guidance for the poor old judges, who will not be able to work out whether someone is abusing the court process, whether they are genuinely bringing forward evidence, or whether they are seriously trying to oppress people in terms of costs and so forth. I do not have that lack of confidence in the courts, and I think that the Minister needs to reconsider.

Further, I do not believe that this will involve thousands of sites. As soon as the ISPs notice that this legislation has gone through, they will alter their behaviour. We have seen what has happened in Sweden where there has been a steep fall in pirate sites, and I believe that it would be exactly the same under this legislation. We also cannot accept the Minister's points about the EU technical directive in this case. The noble Lord, Lord Lucas, made the point very effectively. If the Minister thinks that the wording of proposed new Section 97B is not precisely apposite for the purpose, it can always be changed at Third Reading to make sure that it is valid. We would welcome amendments to that effect.

The Minister talked of "no defences" and "no guidance", and I have made the point about our judges. Our intellectual property rights judges are extremely well equipped to deal with this matter. On the question of the impact on changing public behaviour and the issue of people migrating to encrypted sites, I do not believe that that is going to be the case. What will happen is that, yes, we will see a change in behaviour, but it will be wholly positive, not negative. As for being precipitate, I could never describe the Government as precipitate. When I look back to the Gowers review so many years ago, it is the very reverse of what the Government are doing. I do not believe that this is precipitate. We have debated in the proper fashion the merits of this kind of procedure and what needs to be done in the course of primary legislation over any number of days. The conclusion validly reached on both Opposition Benches is that we need something extra.

I do not know why it has taken the Government so long to come to no conclusion whatsoever in this respect, but I believe that this will send a powerful message to our creative industries that we value what they do and that we want to protect what they do. While we do not believe in censoring the internet, we are responding to genuine concerns expressed by the

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creative industries about the provision of a process whereby their material can be accessed legally in a satisfactory manner. The emphasis is on "legally". I would very much like to test the opinion of the House.

4.45 pm

Division on Amendment 54A

Contents 165; Not-Contents 140.

Amendment 54A agreed.


Division No. 1


CONTENTS

Addington, L.
Alderdice, L.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Bates, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Cathcart, E.
Chadlington, L.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Ferrers, E.
Fookes, B.
Fowler, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Goodhart, L.
Goodlad, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hurd of Westwell, L.
Inglewood, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kimball, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laird, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lindsay, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Nicholson of Winterbourne, B.
Nickson, L.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Patten, L.
Perry of Southwark, B.
Plumb, L.
Quinton, L.


3 Mar 2010 : Column 1471

Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Ryder of Wensum, L.
St. John of Bletso, L.
Sanderson of Bowden, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selkirk of Douglas, L.
Selsdon, L.
Sharman, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Trefgarne, L.
Trimble, L.
Trumpington, B.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Warsi, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Wilson of Tillyorn, L.

NOT CONTENTS

Acton, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Best, L.
Bilimoria, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Borrie, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Carter of Coles, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corston, B.
Coussins, B.
Craigavon, V.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Abersoch, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
D'Souza, B.
Dubs, L.
Elystan-Morgan, L.
Erroll, E.
Evans of Parkside, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
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