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Digital Economy Bill [HL]

My Lords, Clause 4 sets out the requirements that must be met to produce a copyright infringement report. These reports are the mechanism by which the copyright owner brings specific apparent infringements of their copyright via a particular IP address—and I stress "apparent"—at a particular point in time to the attention of the relevant internet service provider. Some of these amendments seek to change the name of these reports from copyright infringement reports to copyright infringement allegation reports. Others propose a change of the wording to require the trigger leading to the creation of a CIR to be that in the "reasonable opinion" of the copyright holder an infringement of their rights has occurred on that internet account, rather than it merely "appearing to them" that an infringement has occurred. I recognise that the apparent infringements are not tested and proved to court standards. It will not be possible at the time the copyright infringement report is made to be able to declare with legal certainty that an infringement has occurred or that the IP address in the reports was responsible. Given this, clearly it is of the utmost importance that the standards of evidence surrounding the identification of both the infringement and the IP address of the infringing account should be as high as possible. I certainly concur with the points that the noble Lord, Lord Clement-Jones, made in relation to the standard of evidence and not presuming this is an open-and-shut case; and indeed with the point that the noble Lord, Lord De Mauley, made about speculative allegations—in other words, what is important is the standard of proof and evidence. New subsection (3) in Clause 4 already expressly recognises that the infringement described in a copyright infringement report is, as the noble Lord, Lord De Mauley, reminds us, only "apparent". Equally I think that the copyright infringement reports amount to more than mere allegation. New paragraph (b) requires the copyright infringement report to include, ""a description of the apparent infringement"," as well as evidence that shows the subscriber's IP address and the time at which the evidence was gathered, so that there will be—I stress this—a clear and robust audit trail. The CIR will also have to comply with any other requirements imposed by the code to be approved by Ofcom. We provided last week an outline draft code that will help to give the Committee an idea of what the code will cover. All this will require the copyright owner to have rather more confidence in, and evidence of, the existence of the infringement and the IP address of the infringing account than is implied by the term "allegation" or even the words, ""in the reasonable opinion of"." Copyright owners will not be able to issue such notices on a whim or with insufficient justification. There will be that clear, robust audit trail. Therefore, although I recognise the point that noble Lords are making with these amendments, they are not necessary. We will ensure that any notifications issued under the code make it clear that the copyright infringement report represents only an apparent infringement and that it has not been proved in a court that an infringement has occurred. Amendment 49 would change the terms in which the copyright owners refer to the alleged infringement but would not have any practical impact on how the copyright infringement report is handled. I am aware that there are some with an interest in these issues who are very concerned to note that the alleged copyright infringements have not been tested by a court of law, and that therefore we have only the copyright owner’s assertion that such an infringement has taken place. The wording in the Bill gives sufficient recognition to this fact and the amendment suggested adds nothing to the substance of the provisions. I understand the concerns about the nature of proof and the question of no presumption of guilt. We believe we have covered that with "apparent" and that we have demonstrated that there has to be a clear and robust audit trail. This is a necessary debate given the importance of these issues. I hope on the basis of the explanations I have provided that the noble Lord will feel able to consider this and be able to withdraw his amendment accordingly.