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Digital Economy Bill [HL]

My Lords, we have had another interesting debate. Given the time, I will do my best to address the points that were made without going on for too long. I shall try not to repeat much of what we have covered on a previous occasion, but some repetition will be inevitable. The noble Lord, Lord Clement-Jones, suggested that the amendments we are proposing will not help at all and that the Constitution Committee’s report said that the government amendments would widen the scope of Clause 17. We do not agree with that assertion. Clause 17 enables the Secretary of State to make provision to amend Part 1 of the 1988 Act, ""for the purpose of preventing or reducing the infringement of copyright by means of the internet … having regard to technological developments that have occurred or are likely to occur"." Government Amendment 211A provides that the Secretary of State can act only if he is satisfied that the infringement in question is having a serious adverse effect and that making the amendment is a proportionate response. There would, of course, have to be evidence to validate and support that. It was further suggested that Clause 17 would allow the definition of "copyright" to be amended. I make it clear that this is not a power to make sweeping changes to the nature of copyright or to what constitutes copyright infringement. The limitation not to amend any criminal offence means that no change can be made to what constitutes infringement, but the measure could be used to help us to protect creators of all types from having their work unfairly exploited without their permission. This power will be used only where new technologies or new services are being used in such a way as to cause serious adverse effects to the rights of others which cannot be tackled under the existing legislation or by the mechanisms in Clauses 4 to 16. The power cannot be used to change what is and is not considered an infringement under copyright law. Therefore, consumers need not worry; behaviour which is considered reasonable and lawful now will not be restricted in the future. Recently, I read a biography of Samuel Johnson which contained a gem of information; namely, that the first copyright Act occurred in 1709, so just over 300 years have passed since then. Further, the journal of his Journey to the Western Isles was very popular and five editions were produced fairly quickly. However, noble Lords will be pleased to hear that it was pirated almost immediately in Ireland, so plus ça change in this matter. The noble Earl, Lord Erroll, took chunks out of the wonderful work of the noble Lord, Lord Puttnam. "Chariots of Erroll" is a frightening concept. My noble friend Lord Triesman gave some good examples. Noble Lords may not have liked the example that was given of the Napster case. However, it demonstrated that the passage from concept to mass usage—and mass usage on a global scale—was exceedingly fast. That is the point there. The noble Lord, Lord Razzall, said that this measure was not necessary because we cannot forecast what will happen. However, a number of potential threats have been forecast in this debate; for example, from cyberlockers, streaming or torrents. We know that such phenomena are developed very quickly. My noble friend Lord Whitty asked me to consider the issue of narrowing. I have already given a commitment to look at that concern. Can we narrow this down significantly? Can we change the system to enable new legal business models to develop? Of course, we want to encourage that. However, I am not sure whether we can incorporate it in legislation. The noble Earl, Lord Erroll, said that we cannot use legislation to send messages. However, we do intend to send messages. I thought we were agreed on that. We said that we were trying to change behaviour and that we agreed on a graduated response. That graduated response means that, in the first instance, we will be sending messages and trying to change behaviour. If people do not respond to that, we shall move to the deterrent element. However, we do not want hundreds of thousands of people to go to the courts and become involved in an expensive and unnecessary procedure. Therefore, I am puzzled by the notion that we cannot send a message. As I said, I am conscious of the time. I do not want to try to cover everything that we covered last time. However, the noble Lord, Lord Clement-Jones, once again referred to draconian measures for internet service providers. The Secretary of State cannot just dream this up. First, we shall look to Ofcom to provide a report. We will look for a basis of evidence. Whether or not we think that the super-affirmative procedure is exactly right, if the Secretary of State wants that to go through both Houses, there will have to be evidence to sustain that. I reiterate the assurance that we will see what we can do with regard to Clause 17 because if it is to be successful we will have to address some of these underlying concerns about what is seen as its breadth and the ability to ensure that there is effective parliamentary control. I thank noble Lords once again for contributing to this debate. I trust that they will support the clause.