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Digital Economy Bill [HL]

I am resisting getting up unnecessarily because I have problems with my hip, so I hope noble Lords will understand that I do not mean to be impolite when I nod in the affirmative. Before I speak to the amendments, it is worth my recalling what gave rise to Clause 17. The clause provides a framework within which to address future issues of online copyright infringement. It is the most effective and proportionate way to ensure that we do not have to react continually to crises but can consider and act within specified limits if—I stress this—Parliament agrees. Online copyright infringement is estimated to cost in the region of £400 million per year. In addition to lost sales, this acts as a significant dampener on the ability of the creative industries to build new commercial online models due to their inability to compete with free online copyright infringement. This is a threat to the ability of an important part of the UK economy to modernise and develop. We live in a time of rapid technological change in which new ways of online copyright infringement can come to the fore quickly, and we need to be able to respond quickly and flexibly. We cannot be completely confident today which nascent threats will become sufficiently serious to require consideration under Clause 17. I give three examples: programs that allow streaming services, such as Spotify music or video such as BBC iPlayer, to be permanently downloaded, thus contravening the terms of access to those services; programs that overcome digital rights management technology, such as stripping music tracks from music videos; and types of aggregators that could create conditions for infringing behaviour. Clause 17 requires a rigorous process to be undertaken, but it might be used to strengthen existing provisions on digital rights management, which might help to counter threats of stream-ripping or video-to-audio conversion, to clarify the legal status of metadata when used to convey the wishes of a copyright owner regarding material that is later subject to civil infringement, and to support rights-holders’ actions against online copyright infringers either by helping with the process or by assisting efforts to educate consumers. I hope these examples illustrate the breadth of the problem with which we need to deal. Amendment 54A, moved by the noble Lord, Lord Clement-Jones, highlights the potential impact that Amendment 120A might have on the operation of the detailed provisions that we are setting up in Clauses 4 to 16. However, the main issue to address is Amendment 120A. I understand what lies behind this approach, but I cannot accept it for two fundamental reasons. First, the provisions would need to be notified to the European Commission under the technical standards directive. Although I accept that the drafting attempts to deal with this, we are clear that even the creative solution offered by the noble Lord, Lord Clement-Jones, in subsections (6) and (7) of the proposed new clause in Amendment 120A would not count as notification in draft. Without the proper three-month notification, the provision would not be enforceable. Secondly, I do not think that it would be sensible or appropriate to adopt this approach today. Blocking access to websites is an enormous step. It is worth noting that many and possibly most sites containing infringing material will also contain legitimate material. Finding a way of blocking infringing material without impacting disproportionately on legitimate uses is likely to be difficult. Simply leaving it to the courts to do that without any guidance or assistance does not seem sensible. However, the trickiest issue is likely to be around sites that link to other sites that would be caught by this proposed clause but which do not have any control over or even knowledge of the content to which they link. That could lead to search engines being on the wrong end of a blocking order, something which I think will cause significant public disquiet. In my view, people would be right to be worried, since we have only the most basic understanding of the potential consequences of such a clause. The noble Lord, Lord Clement-Jones, implied that this would provide a simple solution—would that that were the case. He rightly referred to the activities of the Internet Watch Foundation list. We see that as a very different situation. The core offenders of child abuse imagery are a very small proportion of the population and the list affects only a small number of sites. Due to the penalties and stigma involved, the offenders do not advertise their techniques, and they practise evasion techniques which make them very difficult to detect. However, it is important to prevent accidental exposure to what is globally recognised as offensive content, the very presence of which continues to abuse victims. This is a very different strategy to tackle a different problem. It is not comparing like with like. We estimate that as many as 6 million or 7 million people may be infringing copyright online, and probably thousands of sites are involved. The adoption by 6 million or 7 million people of evasion technologies would be a very substantial change in internet user behaviour and you cannot compare that to the small number of sites to which the noble Lord, Lord Clement-Jones, referred. This is a serious step and we should make sure that if we are going to make analogies, they can stand examination and scrutiny. With due respect, I do not believe that the analogy quoted by the noble Lord, Lord Clement-Jones, can stand that scrutiny. Despite everything that the noble Lords, Lord De Mauley and Lord Clement-Jones, rightly said about scrutiny, accountability, fairness to subscribers and the burden of proof in relation to Clauses 4 to 17, this amendment offers no such safeguards, no thresholds and no defences that can be relied on. It also assumes the service provider’s responsibility even when it cannot reasonably be in a position to prevent the harm complained of. The court is enjoined to take some of those matters into consideration, but it is given no guidance on how to make those judgments or on what might be reasonable levels of collateral harm. I also note that the amendment refers the court to consider any issues of national security raised by the Secretary of State. I say candidly that that misses the point. The security concern felt by the Government and the intelligence and law enforcement agencies is not about particular acts of site blocking but about the impact that site blocking would have in changing public behaviour. That point has somehow been overlooked—I will not say "conveniently overlooked", because I do not dispute the genuine attempts being made here—in a way that would make it significantly more difficult for the intelligence and law enforcement agencies to do their job effectively. For that reason, I strongly urge the House to think and reflect very carefully. I believe that we should reject this amendment. Although it is possible that a clause along these lines might be a useful and appropriate way of tackling some forms of copyright infringement, this amendment is not it. We should not act precipitately in a matter that would so significantly impact on internet users and the digital economy. We have never said that there might not be a case for site-blocking. However, this approach, without consideration and consultation, is not the right way to apply it. It may be an understatement to say that my comments might not be popular with noble Lords who have put their name to the amendment. However, Clause 17 would give us the opportunity to look at the issue properly and to give Parliament every opportunity to scrutinise the evidence and the terms of any order, thereby holding the Government to account. Surely this is a much better approach and is much more likely to yield effective results. I must therefore ask noble Lords to consider the matter carefully and not press their amendments. I come last, but by no means least, to the government amendments. A number of your Lordships rightly expressed concern about the breadth of the power in Clause 17. We agree with the assessment of the Joint Committee on Human Rights that there is a delicate balance to be struck between the right to freedom of expression and the property rights of copyright holders. The checks and balances in Clause 17 allow us to strike that balance. The Government have listened to the concerns raised and, in Committee, proposed substantial amendments which clarified the power’s scope and strengthened the safeguards surrounding its use. They do so in four ways: first, by making it clear that the power is targeted and may be used only to tackle infringement, and only in a way which is appropriate and proportionate—we have narrowed the scope; secondly, by providing a threshold in terms of serious adverse effects, which is sadly lacking in the noble Lord’s amendment; thirdly, by making it clear that the Government must consult all persons likely to be affected; and, fourthly, by requiring the use of the power to be subject to super-affirmative resolution. For the life of me, I still cannot understand the analysis of the noble Lord, Lord Clement-Jones, that that is not a protection. It provides accountability in both Houses, and it gives both Houses the right to reject if they do not believe that a government proposal is appropriate. The noble Lord has not denied that. The super-affirmative procedure provides that the Government must have regard to resolutions of either House and to the recommendations of a committee of either House that is charged with reporting on the draft order. That is accountability. As I said in Committee, a balance has to be struck between the competing needs for careful and measured consideration of any action and for the ability to act quickly when the occasion demands. It is absolutely right that Parliament should have enough time to consider properly any proposed use of the power. The use of the super-affirmative procedure will provide for this. We are supplementing that through new amendments. First, we have listened to concerns about the breadth of the clause. Amendment 113 makes it clear that the scope of amendments to Part 1 of the 1988 Act is limited to Chapter 6 of Part 1 of the copyright Act. It clarifies that the clause can be used only to make enforcement of rights easier or more efficient, not to define what constitutes copyright infringement. Secondly, the amendments require an independent report to be submitted to Parliament on whether the infringement about which concerns have been raised is having a serious and adverse effect on businesses or consumers. Thirdly, the amendments prohibit the clause being used to require payment of any sum other than that required to cover the cost of the performance of the function. The amendments will ensure that the breadth of Clause 17 is properly defined and that Parliament is properly able to consider the evidence and any order made under the power. As a result, the clause will allow us to respond quickly and flexibly to adverse developments that affect our vital creative industries. I strongly urge the House to reject the amendments tabled by the noble Lords, Lord Howard and Lord Clement-Jones. Their intentions may well be honourable, but their proposals are unfortunately not appropriate and will not solve the problem. I hope the House will reflect further and agree with the Government’s amendments, which give us both proportionate and flexible power.