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Digital Economy Bill [HL]

My Lords, the purpose of this amendment is to add a further obligation on internet service providers to block access to a website. This would be done on the basis of a declaration by a court obtained by a copyright owner that infringement was taking place for gain on a previously warned website and that such infringement continued after the warning. An internet service provider would be required to block access to such a site on presentation of the court declaration by the copyright owner. I understand the motive behind the amendment and the concern expressed by various copyright owners about the threat posed to them by sites offering services such as cyberlockers or streaming. I do not doubt that such sites may be used for the illicit sharing of copyright material and that this has potential to damage copyright owners’ interests. However, it would not be a desirable amendment to accept. First, the amendment would change the focus of the legislation from targeting measures against specific infringers to including network-level measures. These inevitably attract controversy and concern. One reason for this is that network measures such as blocking are blunt instruments. Many websites used for infringing activity will almost certainly be used for entirely legitimate purposes as well—cyberlockers could, for instance, be used for storing photographs. Blocking access to them may prevent infringing behaviour, but it would also block entirely lawful activity, and people so blocked would be entitled to be aggrieved. That is part of the concern expressed by the noble Earl, Lord Erroll. Secondly, copyright owners can already obtain from the courts an injunction preventing copyright infringement by a website if they have evidence of such infringement. There is no need for any further power for copyright owners to take court action. The difference is that this amendment seeks to put the responsibility for enforcing copyright on an ISP rather than relying on the existing powers of the courts directly to order injunctive relief against the actual infringers. Finally, there is a serious practical point to be borne in mind. Were the new obligation to be accepted, it would almost certainly be notifiable to the European Commission under the technical standards directive, which, as noble Lords will know, requires that such a measure affecting the operation of internet service providers is notified while in near-final form but is capable of amendment. It also specifies a minimum three-month standstill period while member states and the Commission have the opportunity to consider and comment—a delightful thought. To state the obvious, we do not have three months available within the current Session. I have tried to address the concerns expressed by the noble Lord. We do not believe that his proposal is the right vehicle or that it is legally feasible or technically desirable because of its unintended consequences for perfectly legal operations. In the light of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.