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I know that the Government and others in this House do not accept that, but that is how it will seem to millions of subscribers. The Government would have a more positive story to tell were they to accept that stage 1 is genuinely an educational stage and to say that they will use it not only to inform people of the copyright situation but to encourage the various parties to get together to develop and provide lawful means of accessing copyright material. That period should be tried for at least 18 months or a year after the Bill is passed and the code is drawn up. We will in practice need a somewhat longer period to assess that, but that at least gives a clear-cut distinction between stage 1, which is educative, and a decision by affirmative resolution of Parliament that we should move to stage 2, with all the penalties involved.

This amendment therefore says that those notifications to individual subscribers, who may or may not be the actual perpetrators, should not count towards the accrued total which would trigger the sanctions in stage 2-the technical measures by which we mean cutting back or cutting off access to the internet-until Parliament has decided that that is necessary because we have not made sufficient progress towards reducing unlawful copyright infringement or developing lawful means of accessing copyright material. Until Parliament has said that, no notification should count towards a subsequent penalty. After that point-when Parliament has decided on an affirmative resolution based on the

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Secretary of State's assessment of the situation, which will itself be based on a detailed Ofcom report-if we need to move to technical measures, any notification letter should count.

This amendment will ensure that they do not count at the first stage and that they will be regarded, as my noble friend the Minister has said, as educational and informative. That would remove many anxieties among the public and it would certainly remove a significant number of my own. I have put this in a wider context which needs to be borne in mind, partly because this is the last opportunity to do so-and I promise not to speak at great length to subsequent amendments. The Government have an opportunity, if they were to accept this amendment, of allaying some of the anxieties, including, to some degree, some of my own. That would put this section of the Bill on a much more positive note. I would therefore hope, and expect, that my noble friend the Minister will be able to accept the amendment. I beg to move.

Lord Razzall: My Lords, I did not intend to speak on this amendment, but I cannot allow the remarks of the noble Lord, Lord Whitty, or rather the chairman of Consumer Focus, whose interests he is clearly representing here today-

Lord Whitty: My remarks represent my personal view. In fact, Consumer Focus may be slightly more conciliatory, so I ask the noble Lord to withdraw that remark.

Lord Razzall: I think the noble Lord, Lord Whitty, should withdraw the remarks he made about my noble friend Lord Clement-Jones. A number of us have spent many years trying to wrestle with this problem. I understand that the noble Lord, Lord Whitty, has obviously come to it relatively late.

The Government have engaged in an extensive consultation to try to find the right balance between the rights of the copyright owners and the rights of the consumer. What concerns me about the comments of the noble Lord, Lord Whitty, is that a number of the things he has said about this Bill are simply not true. I am sure that the Minister will deal with that.

What worries me more particularly, apart from the intention of delaying the provisions, is that despite the fact there has been extensive consultation and significant movements by the Government to try to get the right balance between the rights of the copyright owner and the rights of the consumer, no proposal comes from the noble Lord, Lord Whitty, as to how the interests of the copyright owner should be protected.

It is a perfectly sustainable position that a lot of people take that everything on the internet should be free and that everyone should be allowed to download for free; most 18 to 23 year-olds take that view. I completely share the noble Lord's view that this requires a significant educational process. The creative industries have now spent three, four, five or six years endeavouring to get a structure in place that will get the right balance between the interests of the copyright owners and the rights of the consumer, and we cannot suddenly now say, "Let us tear that up and start again". That is essentially what this amendment says. I am afraid we cannot support it from these Benches.



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3.45 pm

Lord Puttnam: My Lords, I very much hope that this is the last time I will speak in what has been a very protracted series of debates seeing this Bill through to its passage down the corridor. I find myself in a very odd, paradoxical situation. The noble Lord, Lord Whitty, is right: I bow to no one in my defence of the rights of legitimate copyright owners and also in maintaining that-in my judgment-the creative industries will eventually atrophy unless adequate protections are created and a respect for copyright is developed.

Having said that, I disagree with the noble Lord, Lord Razzall. I do not believe that enough has been done, or enough intelligence brought to bear, in creating a serious balance between what I would refer to as free-use protocols and copyright protection. The ball was dropped badly early on by the failure of the Government to understand that, in exchange for a firm commitment to protect copyright, a review should have been undertaken of those areas in which copyright could be freed up. We have done a pretty good job in this House in the area of orphan works, but there are many other areas where copyright unnecessarily prohibits educational use as well as any number of other uses-clip rights, for example, in the film industry. A trade-off should have been orchestrated early on between firm protection on the one hand, and optimum free use as advocated by the Creative Commons movement on the other. That was the first missed opportunity.

As to the other missed opportunity-I would be grateful if the Minister would help me on this-why on earth were the ISPs early on allowed to wriggle off the hook of their obligations as part and parcel of the value chain by which copyright material creates revenues and reaches customers? What kind of strange double think was it that allowed the ISPs to believe they were not part of that value chain? I used an analogy on the radio the other day which is not unreasonable: it is rather like the owners of chemist shops deciding that they have no responsibility for what prescription drugs are or are not sold over their counters. Every chemist understands that if you open a chemist's shop you immediately take on a series of clear responsibilities-not only health and safety responsibilities but responsibilities for the products you sell. How was it that the ISPs managed to convince the Government that they were not part of a legitimate value chain with all the responsibilities that come with it? This is what puzzles me most. I sincerely believe that it lies at the core of the problems with the Bill, and I would be grateful if, at this very late stage of Third Reading, the Minister could explain to the House exactly how this occurred.

Baroness Miller of Chilthorne Domer: My Lords, the disquiets I had at Second Reading have not been dissipated, and I join the noble Lord, Lord Whitty, in many of his remarks. My disappointment is that normally this House is assiduous in making sure that due process is seen to be done in Bills. The fact that we are not going to be allowed to debate and come to a conclusion on Amendment 6 reflects poorly on the Government, but I accept that the usual channels have no doubt agreed that it will not be debated. However, the amendment encapsulates some of the principles that the noble Lord, Lord Whitty, was talking about. The

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Bill refers to a study of the efficacy of techniques, but this House will not be allowed to take a view on whether an economic and social impact assessment should be undertaken. That is the heart of the matter.

People like me who worry about what is in the Bill have never disputed that the creative industries need protection-I thoroughly agree that they do. However, I have felt all the way through the Bill that there are not sufficient checks and balances to protect the consumer. In particular, when a person, an institution, an internet café or a university is accused of transgressing these rules, it will hit the individual very hard. How will they disprove the accusations? They will have to employ a computer expert to counter the argument but there will not be legal aid for this; the money will not come forth. We should have debated these issues in this House. I believe that we would have come to the conclusion that we should protect the consumer better.

The real problem is that the other House also will not be able to come to any conclusion about this issue; its Members will get only a Second Reading. They will not have a chance to put amendments forward on behalf of their constituents to make the Bill better balanced. Given the imminent election, it is incumbent on the Government to include the checks, balances and concessions for which we have asked.

The Earl of Erroll: My Lords, I wish to make a couple of remarks, as I have my name down to this amendment. I thank the Minister for being so patient with us for raising so many points as we went round and round certain issues several times, seeking different ways of trying to get consumer protection. I know that this has been a difficult time for the Minister. I am sorry when he half rises to his feet and then has to sit down again. I wondered whether we should excuse him from doing so because of his hip. Perhaps he could just stand back from the Dispatch Box if we interrupt his speech and we could-in our courteous way-allow him a slight degree of latitude as regards our conventions.

This Bill is supposed to be based on the Digital Britain report produced by the noble Lord, Lord Carter, which encapsulated a vision of a future based on a digital economy. However, it contained considerable consumer focus; this Bill does not. A couple of issues that helped the consumer could have been included, but unfortunately I received notice earlier this afternoon that they lay outside the rigorously rigid rules for Third Reading, and therefore the usual channels had disallowed them. I had notified the Bill team of them because they might have helped to clarify some points for the general public, who will be watching this debate with interest. It may interest your Lordships to know that "Panorama", at 8.30 pm tonight-

Lord Williams of Elvel: My Lords, I apologise for intervening, but the noble Earl must remember that we have a Companion to the Standing Orders, which is agreed by the whole House. It is not just a question of the Government or the usual channels; Third Reading amendments are subject to the guidance which has been agreed by the whole House. It is not a matter for the Government at all.



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The Earl of Erroll: The noble Lord has not seen my e-mail in which I argued that I thought the issues were just within the bounds for various reasons. However, we should not be debating that now, for the very reasons that the noble Lord has just given. That issue might be worth taking up because they were different in emphasis. My Amendment 6, which has been refused, was not the same as the others, which offered enforceable protections to the consumer. Amendment 6 sought purely to produce a report and impact assessment for the same class of people through Ofcom. It did not have the same force as the previous amendments that we had tabled. Perhaps that is not allowable; perhaps it is. It is the sort of debate that this House should have. The matter should not be decided by just a small cabal of Front-Benchers.

The real trouble with the Bill is that it is highly unusual. We should not pass legislation in this way. The Bill is entirely a product of your Lordships' House. It will go to another place and will receive a Second Reading. One is told that no amendments will be permitted to it. Many Members of the other place are extremely annoyed about that and are very upset that the Bill cannot be amended at all. The form in which the Bill leaves this place is that in which it will pass into law. Therefore, our rules at Third Reading should be much less rigid considering that this is the last time that amendments can be put down. It is a very dangerous way in which to pass legislation; in fact, it is unethical. As I have said before, if we were directors of a company we would probably be locked up for failing to undertake proper governance. Parliament should not behave in this way.

As I say, noble Lords may be interested to hear that "Panorama" at 8.30 pm tonight on BBC1 will be devoted entirely to this Bill. It will be interested to see what balance is struck in the arguments. I have no idea what is in the programme-

Lord Fowler: Watch Sky.

The Earl of Erroll: The channel is 101 on my Sky machine, and it is at 8.30 pm tonight, if that is of any assistance to the noble Lord.

There has been an escalation in notifications being sent out-without this Bill being in place-from various law firms, particularly American law firms. If these notifications are already piling up and are counted from day one, some people will have a huge handicap at the starting blocks. This amendment is essential as it would enable us to say, "We are drawing a line. We now have new legislation. We are going to move forward under the rules of this legislation. Therefore, notifications issued under previous legislation that might have existed will not count towards the various measures that might be introduced under this legislation". It is entirely sensible to have a proper start point. I would be very surprised if anyone wanted to turn this down.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Young of Norwood Green): My Lords, I do not believe that we should accept the amendment. It is very clear under new Section 124G(2) of the Communications

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Act 2003, inserted by Clause 10, that technical obligations can apply only in relation to relevant subscribers, and relevant subscribers are those who are included on a copyright infringement list. It would not be sensible, therefore, to suggest that copyright infringement reports produced prior to the order imposing technical measures should essentially be set aside; they are the basis on which the subscriber is "relevant".

It was neither helpful nor even fair of my noble friend Lord Whitty to suggest that everybody else was captured by external interests. We have had long, serious debates on these issues which have examined every facet of the legislation. It is untrue that the Government are backing protectionism as opposed to innovation; indeed, we have taken the opportunity time and again to say that there is a duty on copyright holders to produce legal means of access. My noble friend pointed to a poll indicating that 75 per cent of the population do not understand what is lawful and what is not. About that, I would say that it depends how you put the question.

My noble friend needs to make up his mind about stage 1. First, he said that you were more or less found guilty at stage 1; the next minute, he described it as an educational stage. He is right in the latter description: it is of course educational. Moving towards any possible sanctions under technical measures would be a long process. I shall not reply to every nuance of my noble friend's argument, because we have debated the points time and again. Unfortunately, we must agree to differ.

My noble friend Lord Puttnam said that we had missed opportunities. He may be right, but we have tried as hard as we can. The Government have recently published a copyright strategy which looks at copyright broadly and the balance between owners, users and consumers at a European level. It may not be the total answer to what my noble friend requested. We perhaps do not have time today fully to debate the role of ISPs, although we will perhaps touch on it in later clauses. Attempts have been made to encourage ISPs to recognise that they have a role to play, certainly in relation to pornographic and paedophile material, where they have been expected to take action.

The noble Baroness, Lady Miller, again said that she was disappointed. Her analysis was similar to that of my noble friend Lord Whitty. She does not agree with the direction that we have chosen to take. I am afraid that it is not possible to satisfy her in those circumstances.

I thank the noble Earl, Lord Erroll, for his concern. I assure him that I can rise to the occasion today.

When it was said that we had not given the matter enough scrutiny, I could not help but wryly reflect that a 48-clause Bill that has had about 430 amendments tabled to it seems to me a fair amount of scrutiny. If we took the time and trouble to look at how many times we have debated the same issue, I think that we would refute that charge.

I return to the amendment. As I have said, it is not a question of imposing technical measures immediately. We have already made a number of amendments, one of which included a year's interval before such measures could even be considered. However, this does not mean that everybody who thus qualifies as a relevant

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subscriber will suddenly find themselves subject to a technical measure once an order has been made. New Section 124G(2), in Clause 10, defines a "technical obligation" as,

This should be read in conjunction with new Section 124H(3) and (4) in Clause 11, which say that the order must specify the date from which the technical obligation should have effect and the criteria for taking the measure.

4 pm

This gives the Secretary of State the flexibility to make an order that can be targeted-ensuring that those posing most threat can be tackled and those who may perhaps have been unfortunate or have changed their behaviour will be outside such technical measures. In short, while it is clear that copyright infringement reports produced prior to any order being made under Clause 11 remain relevant in terms of whether a subscriber is on a copyright infringement list and is therefore a relevant subscriber, there is sufficient flexibility in the system to ensure that any technical measures are imposed fairly and with fair warning. On this basis, I hope that the noble Lord will feel able to withdraw this amendment.

Lord Whitty: My Lords, I am obviously disappointed in that. This Bill, as my noble friend recognises despite his calm and patient dealing with the long scrutiny we have gone through, makes me quite angry. It is true, as the noble Lord, Lord Razzall, said that there was a lot of consultation prior to the publication of the Bill when this issue was being discussed. However, the representations made by consumer interests, educational interests, the ISPs and many others were not taken into account.

For the sake of future peace and harmony and good relations, I withdraw any implication that individuals are captured by producers. If people interpreted that personally, I apologise. It is nevertheless the case that the views, in particular of the music industry have been pressurising government over the past few years throughout this whole process. When the Government modified their position slightly, following the report of the noble Lord, Lord Carter, the pressure came back on and it was tightened up again.

I think there is an imbalance in this Bill. The amendment was not intended to destroy the structure of the Bill-I do not agree with the structure of the Bill but we have debated all that. It was intended to say that the first stage, which the Government themselves have said again today is an educational stage, should indeed be an educational stage. It should not be the start of a process that could end in very substantial sanctions. That would seem to me, if you were starting from scratch, a very sensible way of proceeding. As the Bill stands, it is only an 18-month delay that I am talking about and that is already built into the Bill. It would simply be that when you are sending notification letters to subscribers, who may be utterly unaware that any infringement has taken place, the letters should not accumulate until this House, and this Parliament, have decided that technical measures-namely, heavy sanctions-are actually required.



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In normal, calmer circumstances certain Members of the House at least may well have accepted that argument. I certainly think that it would have been a major argument in another place. Given the present circumstances, I felt it necessary to make my case for this relatively minor amendment, which accepts the general structure the Government have now put in place to ensure that we do in fact get a positive outcome; that is, a lawful system under which consumers can access copyright material. I agree with the noble Lord, Lord Razzall, that digital rights holders have rights in the digital system. We want some return to them but actually this system does not give any return to rights holders. Closing down a significant number of subscribers does not mean that any money whatever goes to the creative artists. The only people who will immediately benefit from it are perhaps a few well-heeled organisations and their rather unscrupulous lawyers. It is not beyond imagination that those who are hit by this sanction will immediately go out and buy a copy of the original work. Quite where the £200 million that the Government expect to go back to digital rights holders emerges from this process, I am not clear-whereas, if we move to what my noble friend Lord Puttnam described, with the ISPs, file-sharing systems and digital rights holders getting together to create a lawful system, which would be accessible, a guaranteed income would go to the digital rights holders. This Bill does not guarantee income for the digital rights holders.

As we go down the line, that may become more apparent. I am hoping that in the process of the code with Ofcom, some of these things may be clarified in a direction that I can support. At the moment, I cannot support this Bill. I recognise, from the opinions expressed around the House, that I should not break the habit of a lifetime and ask the House to vote against the Government. However, I deplore the Bill and am afraid that there is nothing that the noble Lord can say-or my noble friend the Minister, who I hope soon recovers from his affliction. I apologise if this Bill has made his affliction worse and commend his patience and that of his colleagues in dealing with this and other legislation. However, nothing will convince me that this is right. I suspect that, further down the line, we will find that it is horribly wrong and we will be back here in three or four years' time, trying to find some other way of dealing with this situation. Until that point, I withdraw my amendment.

Amendment 2 withdrawn.

Clause 8 : Contents of initial obligations code

Amendment 3

Moved by Lord Young of Norwood Green

3: Clause 8, page 12, line 12, leave out from "relate" to end of line 13


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