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Digital Economy Bill [HL]

These amendments are intended to restrict the application of Clauses 4 to 16 to copyright infringements that occur via a peer-to-peer network. It is absolutely true that these provisions have been written with peer-to-peer networks in mind. That has been the trouble causing so much damage to the creative industries and is certainly the primary problem we set out to address in this part of the Bill. When we came to consider whether we should, as these amendments suggest, restrict these provisions to allow them to apply only in the case of infringement via peer-to-peer networks, we found that there seemed to be no good reason to do so. As we all know, and have recognised in these debates, technology moves exceedingly fast and user behaviour on the internet moves even faster. The one risk we are taking with these provisions is that the behaviour we are trying to address will have moved on by the time the provisions take effect and infringers will be doing something else. It is worth while keeping the application of these measures open to be used in the case of any sort of online copyright infringement—I stress "any"—if they can be applicable. At this point, we have not identified a non-peer-to-peer application that these provisions could be used in relation to. The provisions in Clauses 4 to 16 rely on the issuing of copyright infringement notices which are described in the Bill and would be further constrained by the code, as I have already said. For example, as a minimum we expect that the code would require that the method of detection was via a robust and reputable technology—I try in part to reassure the noble Lord, Lord Lucas—which was open to independent or Ofcom scrutiny. A copy of the copyright material or significant part thereof should also have been captured as part of the detection process. The copyright owner should have verified that he had reason to believe that the usage identified was an infringement. The uploading IP address should have been captured and an exact date and time it was taken. On uploading, the noble Lord, Lord Lucas, asked a pertinent question: what about downloaders? As a fairly mature silver surfer I confess I have not engaged in these activities, but I am reliably informed that when you try to access these sites, many of them only tell you in the small print that you will be uploading at the same time unless you take measures to stop it, which you can do in some cases. If you want to participate in certain file-sharing sites they do not allow you to do that. It is for copyright owners to identify infringement and at present there is no reliable, remote way compatible with EU law to identify somebody who is just a downloader. That is where we are technologically at the moment. Many people do not realise when they are downloading that all their files are also open to uploading as well. That is the way they are identified. That is a fact, it is why it goes on and it is why so many of the infringers can be identified. The noble Baroness, Lady Miller, was perhaps taking a rather extreme view of the effect of the legislation by saying that it was somehow going to depress to a large extent communal use of the internet. That is certainly not our intention and we do not believe that is the case. She asked a relevant question about these sorts of communal networks. We recognise that libraries, other wi-fi operators and open-access providers such as universities serve an important function, not least in helping the less advantaged in getting access online. We do not think that they are caught as individual service providers, which we think they are not, or as consumers. However, the fact remains that they can take easy steps to prevent infringers using their connection. They can apply controls so that file-sharing sites are blocked at a subscriber level, particular protocols are blocked or that the amount of bandwidth available is limited to make file-sharing on such connections unrealistic. After all, there are many organisations that take steps to ensure, for instance, that pornographic sites are not, so far as possible, accessible. Bearing in mind that most such providers—libraries are a good example—offer a service to allow e-mail or web browsing, they need to offer significant bandwidth or access to specific sites or technologies. This is not new. For instance, libraries will not allow you to photocopy a complete book. All we are saying is that libraries and similar communal organisations can take measures to prevent widespread infringements and still allow people to enjoy online access. The consistent theme of the noble Earl, Lord Erroll, is that this is all too complicated and too difficult and that what we are doing will suffer from the law of unintended consequences. We do not believe that to be the case. As other contributors to this debate suggested, we believe that we are taking a balanced and proportionate approach to a real and serious problem. The noble Earl is right that there are plenty of legal uses of peer-to-peer file-sharing, but they are not the ones that we are interested in prohibiting and will not come under these measures. He said that the Secretary of State will stigmatise people. That is not our intention; it is our intention to try to change behaviour and effect a cultural change so that people recognise that creative activity and its copyright support is of real value to society as a whole. If noble Lords look at the nature of the measures we are taking, that is the case. The noble Earl asked about mobiles. As before, if file-sharing is a problem on an ISP’s network, then the obligations will apply to it. However, we recognise that mobile networks face particular challenges, including technical issues and subscriber identification; for example, pay-as-you-go contracts. We anticipate that if the cost to a mobile network is significantly higher, we would, for example, allow a higher flat fee for notifications on a mobile network. I was asked why we have not excluded mobile networks. We agree that file-sharing is not, as yet, a significant problem on mobile networks, but that may not be the case in future. Mobile costs are falling while performance increases, which could mean that file-sharing on mobiles becomes a more realistic concern over time.