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Digital Economy Bill [HL]

My Lords, I shall speak also to Amendment 120A. First, I apologise for the slightly artificial introduction of this amendment at this point in the proceedings. The use of a paving amendment, Amendment 120A, at this juncture is simply a result of the desire of the signatories to the amendment to ensure a proper debate in prime time in this House of the merits of Clause 17 and our proposed substitute for it. In Committee, the view on these and other Benches was that Clause 17 should be left out of the Bill. Without going on at great length, our reasons were various but essentially boiled down to concerns about the scope of the clause and its ability to amend the Copyright, Designs and Patents Act 1988. Amendments tabled by the Government in Committee arguably, in the view of the Constitution Committee, extended its scope. New government amendments have been put down on Report which are claimed to narrow the scope of the clause so that it is only Chapter 6 of the Act that can be changed by the Clause 17 procedure. Nevertheless, despite these amendments, it is the blanket nature of the clause which is objectionable, and I believe it would still be considered so by the Delegated Powers Committee and the Constitution Committee. The Government claimed in their evidence to the Delegated Powers and Regulatory Reform Committee that they need to respond to technological change. In Committee, the Minister used the term "future-proofing". Yet in our view, despite reports such as the Gowers review of intellectual property, which was excellent in many ways, the Government have failed after many years to bring forward legislation to make the reforms that have been suggested. The super-affirmative procedure contained in Clause 17 is not an adequate substitute for Parliament’s established way of dealing with matters of complexity and importance through primary legislation. Despite government assurances, from personal experience I can attest to the difficulty of changing or contesting secondary legislation in any way. As the sub-committee of the Delegated Powers and Regulatory Reform Committee recognised, primary legislation is more suitable for these kinds of changes. At the same time as outlining our objections to Clause 17, we made it clear that were the Government to come forward with concrete proposals to amend either the Copyright, Designs and Patents Act or the Communications Act for specific purposes, we would support them. However, there was a deafening silence from the Government. It has become apparent that there are particular threats from sites—cyberblockers hosted abroad, particularly in Russia. It is clear that infringement is taking place in both peer-to-peer and non-peer-to-peer environments. File-sharing is only one part of the problem. It has become clear that the Digital Economy Bill needs to include measures to deal with non-P2P infringement. About 35 per cent of all online copyright infringement takes place on non-P2P sites and services. We need to tackle an existing problem where there are websites that consistently infringe copyright, many of them based outside the UK, which are beyond the jurisdiction of the UK courts. Rather than "future-proofing", we need "present-proofing". We have therefore devised a proposed new Section 97B for the Copyright, Designs and Patents Act 1988. Amendment 120A is designed as a specific alternative to the blanket nature of Clause 17. The proposed new clause makes explicit what is already implicit in the CDPA. Currently, Section 97A provides for injunctive action against service providers. That section was added as a result of the e-commerce directive of 2001, now implemented across the EU. The amendment would specifically allow the High Court to grant an injunction requiring ISPs to block access to sites where there was a substantial proportion of infringing material that is either hosted by the particular site in question or accessed through the particular site. The injunction would be granted only where rights holders had first requested ISPs to block access to the site and when they had also requested the site operator to stop providing access to the infringing material, either by removing the material itself or removing the ability to access it. Any concerns regarding Article 6 of the European convention, on the right to a fair hearing, are dealt with by the fact that the service provider would be a full and active party in the proceedings. Equally importantly, the site operator will also be served with notice of the injunctive application. There is an explicit reference to human rights implications being taken into consideration by the courts in the new clause. This remedy would stop the supply of illegal content by blocking it at source. There are several websites, many of which are based outside the UK, which refuse to stop supplying access to illegal content—indeed, whose business plan depends on supplying illegal content. At the moment, it is not explicit what can be done about such sites. This site-blocking remedy would give rights holders an explicit, swift recourse to court to block access to those sites. It is very straightforward for a party to avoid an injunction by this remedy—simply remove the infringing part of the publication permanently or temporarily pending investigation. The amendment addresses many of the concerns expressed about Clause 17. It moves the decision-making to a court rather than the Secretary of State and thereby affords the ISP the opportunity of the six months deadline for the creation of the code to be extended. It contains two clauses that would have the effect of deferring the provisions of new Section 97B coming into force until the notification process is complete. There is already a remedy under Section 97A of the CDPA, which grants copyright owners a broad power to apply to the courts for injunctive reliefs. This amendment does not seek to replace that section, but enhances that power by giving copyright holders a more clearly defined relief with respect to the blocking of infringing sites. I commend this amendment to the House as a more proportionate, specific and appropriate provision than Clause 17, and I hope that the Minister will take a similar view. The measure confines itself to site blocking. It is a less dramatic change to the copyright Act than originally envisaged by the Government. It amends the Act simply by introducing new Section 97B. It would sit below and build upon the existing Section 97A, which currently provides for rights holder to apply for unspecified injunctive relief to deal with copyright infringement. Finally, it provides against rights holders returning to the court as a substitute for developing innovative and legal services. The court can have regard to whether the copyright owner has made reasonable efforts to facilitate legal access to the content. The Government, with whom we have had some discussions, have said that they are opposed to this measure on the grounds of national security objections. We are told that there may be problems for national security in site blocking. We have again explicitly tried to ensure that these concerns can be taken into account by a court when granting an order. The amendment makes provision for the court to have regard to any issues of national security raised by the Secretary of State. Furthermore, if the injunction was exercised with regard to only a handful of sites a year, it would be unlikely to trigger the mass defection to encrypted sites that may be at the root of the Government’s concerns. Site blocking is not a new phenomenon. It is used with great success in other spheres to restrict access to sites hosting illegal content. The most well known is the recommended list of sites to block provided by the Internet Watch Foundation. A direct analogy is obviously difficult given the content that the IWF monitors—child sexual abuse content hosted worldwide and criminally obscene and incitement to racial hatred content hosted in the UK—but the important fact is that sites are routinely blocked. Recently, in response to a Parliamentary Question on the blocking of websites identified as containing illegal images of child pornography, Alan Campbell MP, Parliamentary Under-Secretary of State responsible for crime reduction said: ""The Government regularly receives representations relating to blocking, from different sections of society. The Government discusses issues relating to child protection, including blocking of websites containing illegal images, with a wide range of stakeholders.""The Government are clear that the use of blocking to prevent access to such images is something that internet service providers should do, and the Government have been very pleased with the response from the internet industry".—[Official Report, Commons, 2/11/09; col. 692W.]" I think that speaks for itself. In addition, at the end of last year, an operation by the Met’s e-crime unit resulted in more than 1,200 websites being shut down or effectively frozen. Access to these sites, which were selling counterfeit goods, was denied. I said earlier that the Government have raised the objection that the proposal, if it became law, would require notification to the European Commission under the technical standards directive. We believe that the explicit reference to the time delay required in order to comply with the EU technical standards directive cures that problem. I commend the amendment to the House. I beg to move.