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Digital Economy Bill [HL]

My Lords, in moving Amendment 118, I shall speak to Amendments 119, 189 and 190. I hope that the Minister will be instantly sympathetic to at least the first limb of these amendments, which fall into two parts and refer forward to another similar provision later on, in Clause 13. The first relates to the burden of proof, which is faced by a subscriber on the appeal mechanism. It is very important that when these matters come to appeal—and it will, I suppose, be about the evidence that is available—it is absolutely clear that the onus is on the copyright owner to demonstrate that there has been a breach of copyright and that, therefore, enforcement measures are appropriate. That will become increasingly important, particularly if, looking forward, Ofcom decides that the initial obligations code does not provide enough weaponry for the copyright owners and that technical measures will need to be adopted. The burden of proof will become even more important in future, because, after all, the initial obligations code is precisely that—it is the very first step towards enforcement of copyright. It does not seem to me to be at all unreasonable that the copyright owner should be expected to justify the allegations and produce the evidence. This goes right to the heart of the consumer confidence issue in this Bill; it is absolutely appropriate that it should be explicit in the Bill that the copyright owner in the first instance, in these appeals, has to demonstrate that they own the copyright, that there has been an infraction or infringement and that they have the evidence to prove it. All that will, I hope, be common ground between all noble Lords in this debate. I hope that the Minister will accept at least that first limb. As for the subscriber appeals and their cost, under the draft order, which we discussed in the previous sitting, we talked about the costs of notification. In square brackets, the Government were saying that they thought it would be roughly 75 per cent for the copyright owners and 25 per cent for the ISPs. There is a strong view among the ISPs, which these amendments are designed to advocate, that that goes too far when talking about the cost of subscriber appeals. That split of 75 per cent and 25 per cent is fine with the set-up costs for notifications, and so on, but a case is being made by the mobile operators, which have rather different cost structures and software requirements, as well as more difficult circumstances with their hardware and software, that that is unduly generous to the copyright owners. The better regulation principles of the Cabinet Office require that the costs of regulation on business as a whole should be kept to a minimum, be proportionate to the desired outcome and, according to its six principles of pricing and recovery, embody both that of cost causation and distribution of benefits. It is true that in these circumstances it is the copyright owners who stand to benefit from these mechanisms. It seems, certainly to those who wish to see this amendment go through, that the order does not currently make a sufficient distinction between the costs of notification, which are a qualifying cost, and the costs of appeals, which are another qualifying cost—they have all been lumped together and apportioned in the way that we have discussed. The Bill should make it clear that ISPs can recover all their reasonably incurred costs in this respect from copyright owners, or indeed under the order. They have a strong case; they should not be making that extra contribution. I shall be interested to hear what the Minister has to say on the first limb of these amendments and on the second. I beg to move.