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I hope that this step will reassure noble Lords who expressed concerns about safeguards and scrutiny with regard to introducing technical measures. Therefore, I beg to move that the amendments made in the other place be agreed to.
Lord Clement-Jones: My Lords, when Clauses 4 to 17 were discussed by my honourable friends in the other place at Second Reading, they were broadly supportive of the provisions but made it clear that their support would be conditional on three additional conditions which they believed needed to be put in place and which became apparent after the Bill's passage through this House. The first was the subject of this amendment: that we needed the super-affirmative procedure to ensure that the next Parliament could properly scrutinise any proposals to include technical measures, which we believe should be introduced only as a last resort based on clear evidence of the need for them. Therefore, we welcome the amendment.
However, we still believe that other provisions are needed in relation to Clauses 4 to 17. My honourable friends said that they needed to resolve the serious problems faced by universities, schools and wi-fi cafes to ensure that they did not fall foul of this legislation, given that they often have one IP address and a very large number of users. In addition, my honourable friends said that we needed to address the timescale within which the initial obligations code was produced by Ofcom. They argued that it could not possibly be given full justice if it were done within a six-month period, given that three of those months have to be spent in consultation with our European colleagues.
All that illustrates yet again the poor process that this Bill has undergone in its latter stages. It would have been relatively straightforward for the Government to accede to those requests if a proper consultative wash-up process had taken place, or indeed if any Committee days had been allocated and certainly if Second Reading had taken place straight after the Bill left this House. In that context, we welcome one-third of the additions that we believe are necessary to make sure that Clauses 4 to 17 are acceptable.
Lord Whitty: My Lords, although I share with the noble Lord, Lord Clement-Jones, some of the reservations about additional safeguards, I welcome these two amendments. Indeed, I could hardly do otherwise as I moved a similar amendment at an earlier stage of the Bill in the Lords. However, they do not go as far as I would like. As noble Lords who have been following this debate know, I should have preferred this whole section to be withdrawn in the wash-up, with our coming back to it at a more considered rate in a new Parliament.
I regret that this, my last, speech in this Parliament sounds critical of the Government, but in fact it is critical of the totality of the political establishment. All three Front Benches here and in another place have adopted a wrong-headed and unworkable approach to the problem of unlawful file-sharing. Above all, they have failed to grasp that it is an approach that will not yield returns to the creative artists whom these procedures are supposed to protect.
I appreciate that there are noble Lords who do not have the technological grasp of the internet that my noble friend Lord Erroll has, nor of the intricacies of copyright law. I was seeking a way to illustrate this to noble Lords who have participated and, although we are at the fag end of the Session, I shall use an historic analogy which I came across over Easter.
There was once a beautiful and sublime piece of music which, by papal decree, was allowed to be performed only once a year in one chapel in Rome. That restriction lasted for nearly 100 years, until, one day, among the tourists who squeezed in to that closed, single recital, was an early teenager from Austria. He listened to the music and, in today's parlance, he downloaded it to his memory. Back home in Salzburg, Wolfgang Amadeus-for it was he-downloaded it again from his memory and format shifted it onto paper. Through his social network, he made that format available to the other musical centres of Europe. That piece of music, as many noble Lords will know, was Allegri's Miserere and, as a result, it has been made available to millions.
What is interesting is not what happened to Mozart, but what happened to the Pope. The Pope saw that his ban was unpopular and totally unworkable. Instead of trying to impose restrictions, he made it available to all the churches in Rome and the papal states for a very small and proportionate donation to the collection plate. In other words, he found an alternative, workable and acceptable business model.
The analogy is not 100 per cent accurate because by Mozart's time, Allegri's work would have been out of copyright, although only just. However, I think the Government and the other political parties should learn from that. The Pope recognised reality, but the danger here is that the political leadership is beginning to appear, particularly in relation to the message from the music industry, more protectionist and less pragmatic and less entrepreneurial than the 18th century papacy.
However, these amendments from the Commons allow us to get round that and to think again before we move to the imposition of the sanctions. We have had very widespread scrutiny in this House, although participation has not been high, and I pay particular tribute to the Minister for his patience and forbearance in dealing with those periods of scrutiny. In the likely event of his reappearance at the Dispatch Box after the election, I have no doubt that he will look forward to another session when, through the affirmative resolution procedure that these amendments provide, we shall discuss the whole situation again. During the intervening period and the drawing up of the secondary legislation, I hope we rethink this whole prospect and that we start again, recognising that a broader and a longer-term approach would be more appropriate. Luckily, I think these two amendments from the Commons, at a minimum, give us the opportunity to do that. Therefore, I support them.
The Earl of Erroll: My Lords, I very much associate myself with the remarks of the noble Lord, Lord Whitty. They were very well put. I think his analogy is closer than he likes to admit in relation to memorising and format shifting-it is almost exactly what has happened. The world has only just woken up to the real impact that this Bill will have on the digital economy, the digital world and on our moving forward in a digital age. People are extremely concerned. Therefore, I very much welcome these amendments as they might give us a chance to have another look at this when we wake up to the true impact. Perhaps they will give us a
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Lord Young of Norwood Green: My Lords, I want to address some of the points that have been raised, starting with those made by the noble Lord Clement-Jones, who expressed a concern once again about the position of libraries, universities and wi-fi cafes. It might be helpful if we put on record a number occasions our view that we can deal with those organisations in a way that is proportionate and fair. We realise that the provisions of the Bill mean that organisations such as libraries, universities and other educational establishments, as well as public and commercial wi-fi, will face particular challenges. We do not want to hamper their activities in providing internet access or to place unnecessary burdens or procedures on them.
At the same time we cannot set up an obvious loophole that would impact on such bodies in terms of degrading the service that they can offer. We think that there is real scope for proportionate, pragmatic solutions to help universities and libraries to comply with the provisions and minimise any administrative burden. As I said earlier, I was at a university recently where there was a large sign up in the library warning students of the penalties and disciplinary procedures that they would face if they indulged in illegal file-sharing and downloading.
We think that this is something that the code is best suited to deliver, and we urge university and library representative bodies to get involved in the code process. We would find it hard to approve any code that did not recognise in some way the particular position of these and similar institutions, and we would not regard any assessment by Ofcom under Clause 10 as satisfactory unless it took account of the impact on those institutions.
We have given assurances in the past on the question of timescale. We extended it. I have to acknowledge that imitation is perhaps the sincerest form of flattery in relation to super-affirmative measures; we took account of what my noble friend Lord Whitty and others said on this matter.
I was reflecting on the papal analogy that my noble friend Lord Whitty drew to our attention, one that I had heard before. We certainly do not claim infallibility-that would be tempting fate-but neither do we believe that this is a wrong-headed approach. I also reflected that if those, in many cases, young people who indulge in downloading really did have the talent and ability to produce what the young Wolfgang Amadeus produced, we would not have any problems with this situation. However, that is not exactly what they are doing. It was Stravinsky-or someone like him-who made the comment that poor composers borrow and good composers steal, but in many cases these people who are engaging in file-sharing are not composers.
The noble Earl, Lord Erroll, said that people out there were extremely concerned. Well, they are concerned because unfortunately the media, in its desire to report
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Lord Young of Norwood Green: My Lords, the aim of Commons Amendment 5 is to tidy up the text of enforcement of obligations and correct a small drafting error. It has no other purpose. Likewise, Amendment 11 in the group is a tidying amendment that aligns the commencement of the substantive provisions on the public lending right in Clause 45 and associated repeal in Schedule 3.
On Amendment 5A, standing in the name of the noble Earl, Lord Erroll, we do not agree that "and" should be substituted for "or". The word "provider" used at the beginning of the sentence should be used at the end of it. That is what the amendment made in another place achieves. On that basis, I hope that the noble Earl will agree to withdraw his amendment.
The Earl of Erroll: I do not intend to waste any time on this; it is just that when I looked at the amendment, I could see that "or owner" followed exactly the pattern of the rest of the clause. It suddenly occurred to me that the steps taken to mitigate or prevent a contravention could be taken by either the provider or the owner. Perhaps it would be wise for them both to be notified, because you could not be certain which one should or should not be taking the steps. You could have a mistake whereby one had been notified whereas the other had, or should have, taken the steps, but did not know about the notification.
The trouble is that I was reading the clause and did not have time fully to research Sections 94 to 96 of the Communications Act 2003. There may be more text in there that might tell us some more about that. I move the amendment for clarification that you could not have a mistake whereby one complied and the other got the notification. That is why I thought that it should state "and". That is a point of detail and I do not intend to press it.
On taking steps to make sure that you do not contravene, I noticed that Parliament is already doing that. I was just tracking down some comments on the Bill. One from the University of Cambridge happened to have a link which I discovered went to Pirate Bay, except that you cannot get there from Parliament any more. It has already started blocking sites that it thinks are likely to be infringing. Are they or are they not? It amused me that Parliament has already taken proactive steps.
Lord Elton: Briefly, I did not quite seize what the noble Earl was saying at the end of his delivery to us. It seemed to me that the government answer was a syntactical one, merely saying that the construction of the sentence was right. The noble Earl's objection is that there is a mechanical defect, in that the wrong person may be alerted as the result of the current form of the Bill. We have not had an answer to that. The noble Earl has already said that he will not press the amendment, which I hope will not relieve the Minister from telling us what are the mechanical results.
It is clear that the effect of the amendment is that Ofcom is to have regard to steps taken by a provider in relation to contravention of obligations notified to that provider, and steps taken by an owner in relation to contraventions notified to the owner. The noble Earl, Lord Erroll, asked whether notification could be to one and steps taken by another. The answer is no. I hope that that is suitable clarification and that the noble Earl, Lord Erroll, will feel able to withdraw his amendment.
The Earl of Erroll: My Lords, I will take the Minister's assurance, because I suspect that that is true. I am not quite sure how it works in certain circumstances, but I do not want to delay the House at this stage. I am sure that others are much more aware than I am of the intricacy of these things, but it would be a lot easier if we wrote simple law in plain English so that you could trace these things through rather than having to refer to multitudes of regulations and Bills to find the effect of one on the other. No wonder there is so much chaos and the lawyers make so much money. With that, however, I beg leave to withdraw the amendment.
(1) The Secretary of State may by regulations make provision about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright.
(a) the use of the internet for activities that infringe copyright is having a serious adverse effect on businesses or consumers,
(b) making the regulations is a proportionate way to address that effect, and
(c) making the regulations would not prejudice national security or the prevention or detection of crime.
(a) a location from which a substantial amount of material has been, is being or is likely to be obtained in infringement of copyright,
(b) a location at which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright, or
(c) a location which has been, is being or is likely to be used to facilitate access to a location within paragraph (a) or (b).
(a) any evidence presented of steps taken by the service provider, or by an operator of the location, to prevent infringement of copyright in the qualifying material,
(b) any evidence presented of steps taken by the copyright owner, or by a licensee of copyright in the qualifying material, to facilitate lawful access to the qualifying material,
(c) any representations made by a Minister of the Crown,
(d) whether the injunction would be likely to have a disproportionate effect on any person's legitimate interests, and
(e) the importance of freedom of expression.
(6) The regulations must provide that a court may not grant an injunction unless notice of the application for the injunction has been given, in such form and by such means as is specified in the regulations, to-
(a) the service provider, and
(b) operators of the location.
(a) make provision about when a location is, or is not, to be treated as being used to facilitate access to another location,
(b) provide that notice of an application for an injunction may be given to operators of a location by being published in accordance with the regulations,
(c) provide that a court may not make an order for costs against the service provider,
(d) make different provision for different purposes, and
(e) make incidental, supplementary, consequential, transitional, transitory or saving provision.
(a) modify Chapter 6 of Part 1 of the Copyright, Designs and Patents Act 1988, and
(b) make consequential provision modifying Acts and subordinate legislation.
(a) the Secretary of State has complied with section [Consultation and Parliamentary scrutiny], and
(b) a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
"copyright owner" has the same meaning as in Part 1 of the Copyright, Designs and Patents Act 1988;
"Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975;
"modify" includes amend, repeal or revoke;
"operator", in relation to a location on the internet, means a person who has editorial control over material available at the location;
"qualifying material", in relation to an injunction, means the material taken into account by the court for the purposes of provision made under subsection (4);
"service provider" has the same meaning as in section 97A of the Copyright, Designs and Patents Act 1988;
"subordinate legislation" has the same meaning as in the Interpretation Act 1978.
"costs" means expenses;
"injunction" means interdict."
The Earl of Erroll: I spoke to this earlier, so it is probably better to say simply that I support the noble Lord, Lord Clement-Jones, in that it would be better to leave this to another Parliament. The very dangerous original Clause 17 has now been eliminated and replaced by Clause 18 put forward by the Liberal Democrats, which was a good try but had flaws. As I said earlier, there are flaws here. For instance, where I think they mean to refer to an internet service provider, they refer only to a service provider, which is a completely different animal. That is dangerous, so I would move that this was left to another Parliament.
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