---

Digital Economy Bill [HL]

My Lords, Amendment 86 would make the provisions of subsection (3) a requirement rather than an option. These provisions specify conditions that must be met for the obligations to apply in a particular case, and require copyright owners and internet service providers to provide any information or assistance reasonably required to determine whether such conditions had been met. We would be well advised to retain the flexibility that is provided by the existing text. It is important that the possibility is there to specify conditions for particular cases, and to ensure that the resources and information are provided to make that happen. There is little merit in requiring that to be provided in the code. Amendments 92 and 92A would require Ofcom to measure and verify that an internet service provider’s network is consistently and significantly used to infringe copyright, as well as exceeding the threshold, before the obligations apply. Amendment 92A goes into more detail, specifying that 25 per cent of an internet service provider’s traffic should be accounted for by illegal downloads, as audited by Ofcom, and taking into account legitimate file sharing. This is not a practical idea. It is one that would prove immensely difficult to put into practice. It would not be possible for Ofcom to measure such infringement levels, apart from by counting the number of copyright infringement reports generated by a particular network. Again, that is no more than the threshold already provides. We would not favour Ofcom being empowered to measure activity on a network through intrusive techniques, as is implied by Amendment 92A—the only way in which it could otherwise be done. The only way in which unlawful and lawful traffic can be differentiated using the same file-sharing technology is by going in and checking—I understand that the technical term is "deep-packet inspection". Not only might that raise issues under European legislation, it is also very expensive. It would not be justifiable to interfere with the legitimate operation of a network when there is a reasonable alternative on offer in the shape of the number of copyright infringement reports generated. However, if the idea is for the overall peer-to-peer traffic to be measured and then multiplied by a fraction assumed to represent unlawful as against lawful traffic in the stream, this would be a crude measure, and less reliable than the alternative provided. I will pass over the difficulty of agreeing what the multiplier should be, since it seems self-evident. The amendments do not add anything to the existing text, apart from a measuring role for Ofcom that it is not empowered to undertake, or would undertake through the evaluation of information that will in any case be generated and used to judge whether a network is above or below the threshold set for application of the initial obligations. I therefore invite noble Lords not to press their amendment. Although Amendments 87 and 197 span two different clauses, it makes sense to take them together since they are designed to differentiate the treatment of non-individual subscribers such as libraries, communal networks, schools and universities from the way that the obligations will address individual subscribers’ alleged infringement of copyright. I will endeavour to reassure the noble Lord, Lord Clement-Jones, and my noble friend Lord Whitty, that of course we want to maintain access and encourage legitimate usage; but we cannot give a carte blanche to these institutions to take no precautions and allow wholesale illegal activities. We must find a balance involving responsible and reasonable measures for these institutions and communal providers to undertake. We have tried to be helpful and provide further detailed information, which has been acknowledged. Perhaps we can improve on that. Noble Lords are seeking special treatment for libraries or cultural and educational establishments that are subscribers and which operate a network for the benefit of their customers or students; and indeed to exclude them altogether from the technical obligations code. That would not be a great improvement when it comes to the problems that I outlined during the debate last Tuesday on a similar amendment tabled by the noble Baroness, Lady Miller. It is not clear what is meant by "reasonable rights and obligations" for inclusion in the initial obligations code. Nor is the case strong that they should expect preferential treatment. As I have said, we do not want to encourage the use of such public institutions to infringe, with little or no consequence, other peoples’ copyright, particularly when measures can be taken to prevent such infringement. In any case, why should such institutions be less stringently treated than commercial entities offering a network? In the same vein, I am not convinced that we need to exclude such public bodies from the provisions of the technical obligations code. The question may be asked as to whether we really want to see the connection of the British Library, or any library, suspended. The answer of course is no, and it is not remotely conceivable that any appeals body would confirm such a penalty so long as they could demonstrate that they were taking effective and reasonable measures to ensure that their network was not being habitually used for infringement. It is right that they should be expected to take such measures. For example, students using their university’s network have to recognise that they must abide by the conditions of use for it. That is one side of the bargain—the rights and responsibilities. Communal subscribers also have responsibilities. We believe that we can help them take measures that would largely prevent illegal infringements. We wrote to noble Lords involved in the debate last Tuesday to set out precisely how we think these provisions should apply in respect of, for example, libraries and educational institutions, and the steps that they can take to ensure that copyright infringement does not occur on their networks. As long as these institutions will be taking, and are seen to be taking, these measures, I reassure noble Lords that there is very little chance whatever that they will be disconnected or have their bandwidth reduced. We cannot somehow just indicate to people: "Well, if you operate on these networks, you can do anything you like". There are other things that could be accessed on those networks which none of us in this Committee would think was reasonable. I hope that the information provided in that letter will have helped to reassure noble Lords that we are not putting libraries or other institutions in a position whereby they will be helpless victims of, on the one hand, infringing customers and, on the other, draconian provisions. As long as libraries and education institutions offering these sorts of internet access points take—I stress this—sensible measures to prevent infringement of copyright, they will not be impacted by the Bill at all. This is, after all, what we are asking individual subscribers to do. We will be writing to them in the same way, saying: "There would appear to be an infringement and here are the measures that you can take to prevent that". We will be saying exactly the same thing to communal providers. As long as they take the sensible measures to prevent infringement of copyright, they will not be impacted by the Bill. Given those explicit assurances, I invite the noble Lord to withdraw the amendment.