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Digital Economy Bill [HL]

In moving Amendment 86, I shall speak also to Amendments 87, 92, 92A and 197. These cover two rather different bits of ground and probably should have been degrouped, but I will deal with them as a whole. We had some debate last week that included the discussion about wi-fi networks, communal networks and so on, and in a sense this is a second bite of the cherry to try to get further clarification, particularly in the light of the useful note circulated by the Minister, headed "Online infringement of copyright: detail regarding Clauses 4 to 16". There is still some doubt, and it would be useful to have the Minister underline some of the issues in the note. It is about the question whether an intermediary organisation that provides network access to users or employs other to do so, such as a library, university or school, should in terms of the Bill be classified as an internet service provider, subscriber or communications provider. If a library or educational establishment is a communications provider, its activities would be exempt from the Bill. If not, various libraries—clearly this is important to libraries—would seek amendments, assuming that a library or educational establishment is a subscriber. In the note, it seems fairly clear that they will be regarded as a subscriber and will receive notifications if their internet service IP address is identified as a source of apparent infringements. There is obviously a chance that a library or other subscriber, as the note says, might in due course be subject to either a civil action by copyright owners or technical measures, should they be introduced. It seems to me that the Government are providing clarity but sadly it looks as though libraries are going to fall on the wrong side of the line. Can the Government give any comfort to libraries in these circumstances? The only comfort that the Government appear to give under this document is that they can install the appropriate software. If one goes further down into the document, it talks about what reasonable steps might be in practice, and that seems to be what the Government are suggesting. It seems to me that there are powerful reasons why libraries should not fall in this way in the Bill. I accept that the Government have given clarity, but at the same time that clarity has been very unhelpful to a particular sector. I would be very interested to hear what the Minister has to say in that respect. On Amendment 92A, there is an issue about thresholds, not so much for the individual subscriber but for the internet service provider. I hope that the Minister has a dual briefing, and I apologise that two rather unrelated subjects are in the same group. If the Minister looks at the amendment, which proposes to leave out lines 22 to 24 on page 8, he will see that it is in relation to internet service providers, and we are trying to provide a different kind of threshold. Many internet service providers strongly support the inclusion of a minimum threshold, but there is a problem with the Bill as drafted. Under Clause 6, proposed new Section 124C(5)(b) of the Communications Act, the requirement to comply applies retrospectively to a time before the threshold is reached. That is both unreasonable and unworkable. In particular, in order to ensure their compliance this would effectively require operators to implement the necessary IP system and process changes in anticipation of reaching the threshold, regardless of any actual or potential misuse of online content by their owners. The Bill should indicate the level of threshold and should indicate that there must be a significant level of unlawful activity occurring on a network—this is a very good attempt to provide something specific—such as 25 per cent of traffic handled by an ISP, before the threshold is reached. Below such a threshold, the requirement to implement such systems will imply a disproportionate burden on ISPs, since surely the Bill must recognise that the Government’s proposals will not eradicate all file-sharing and should focus on those areas where most harm occurs. Six ISPs account for 90 per cent of all internet traffic. The focus on eradicating all file-sharing would penalise all ISPs and avoid the equally if not more important issue of introducing currently absent incentives to provide consumer education about legitimate alternatives. In any event, the requirements should disapply if the number of notifications made by copyright owners to an ISP dropped back below the threshold. There are operational and maintenance costs as well as capital costs of complying with the requirements. This will also ensure that there are incentives on the copyright owners to act proportionately and develop new legal offerings and undertake consumer education. I beg to move.