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Digital Economy Bill [HL]

I am grateful to noble Lords who have spoken in the debate and I appreciate the concern about the potential retrospective duty. That issue was raised at Second Reading and I appreciate the concern about internet service providers being suddenly landed with an obligation to send out hundreds or thousands of notifications relating to information passed on to them months previously and for which they are not prepared. Until the end of the qualifying period, they cannot ensure whether they will be subject to the obligations—a point reinforced by the noble Lord, Lord Howard. Amendment 93A provides for ISPs to have sufficient time to prepare and equip themselves to meet the obligations as well as allowing them to drop out of the obligations if the level of illegal downloads on the networks drops below the threshold set for six months. Those are perfectly reasonable points, but against that must be set the resource that will have been committed by copyright owners to generate the notifications during that period. There seems to be little point in such effort if it is essentially to be wasted. It would not be sensible to generate such effort and expenditure for it to lead to nothing more than a starting point, which would be the effect of the amendments. The example that we suggested in the Explanatory Notes of a three-month initial period may be too long. In establishing who is subject to the obligations, one month may be more appropriate. The Government are thinking along those lines. That would have the advantage of ensuring that the system is up and running in good time, giving all parties earlier certainty as to whether they are in or out, and ensuring that notifications sent with respect to the initial period are current and reasonable in number. I understand the wish to give internet service providers time to get up to speed once they are identified as being subject to the obligations. I suggest that such practical detail is best left to the code. It may be worth citing the passage in the outline code that specifically recognises that point. I think that it may go some way towards allaying the anxieties. Paragraph (b) states: ""Period of grace for ISPs to comply once in scope ... The code might consider whether once an ISP becomes in scope they should be allowed a period of grace before the obligations bite. For some ISPs there may be real unforeseen technical issues which require time to resolve"." I understand the thinking behind the idea of internet service providers being removed from the obligations if they can show that the level of infringement on their networks is below the threshold for six months, but, in practice, that will not be of any real benefit to them, as the bulk of any cost will be incurred at the beginning, and the ongoing costs will be relatively small. The main costs will have already been incurred. In any case, they will almost certainly need to remain in readiness in case they again rise above the threshold. If internet service providers work to ensure that the level of infringement is low, they will have a correspondingly low number of copyright infringement reports relating to their subscribers. In short, I understand the concern behind the amendments and I have some sympathy with them. I believe that sufficient flexibility and pragmatism is built into the system that the Bill will set up. I referred to the code, which indicates that the amendments are not needed. The Government are fully seized of the strength of the arguments put by noble Lords and we are already establishing a system that is sufficiently flexible and workable. I hope that, on that basis, the noble Lord will feel able to withdraw the amendment.