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Digital Economy Bill [HL]

My Lords, I do not believe that we should accept the amendment. It is very clear under new Section 124G(2) of the Communications Act 2003, inserted by Clause 10, that technical obligations can apply only in relation to relevant subscribers, and relevant subscribers are those who are included on a copyright infringement list. It would not be sensible, therefore, to suggest that copyright infringement reports produced prior to the order imposing technical measures should essentially be set aside; they are the basis on which the subscriber is "relevant". It was neither helpful nor even fair of my noble friend Lord Whitty to suggest that everybody else was captured by external interests. We have had long, serious debates on these issues which have examined every facet of the legislation. It is untrue that the Government are backing protectionism as opposed to innovation; indeed, we have taken the opportunity time and again to say that there is a duty on copyright holders to produce legal means of access. My noble friend pointed to a poll indicating that 75 per cent of the population do not understand what is lawful and what is not. About that, I would say that it depends how you put the question. My noble friend needs to make up his mind about stage 1. First, he said that you were more or less found guilty at stage 1; the next minute, he described it as an educational stage. He is right in the latter description: it is of course educational. Moving towards any possible sanctions under technical measures would be a long process. I shall not reply to every nuance of my noble friend’s argument, because we have debated the points time and again. Unfortunately, we must agree to differ. My noble friend Lord Puttnam said that we had missed opportunities. He may be right, but we have tried as hard as we can. The Government have recently published a copyright strategy which looks at copyright broadly and the balance between owners, users and consumers at a European level. It may not be the total answer to what my noble friend requested. We perhaps do not have time today fully to debate the role of ISPs, although we will perhaps touch on it in later clauses. Attempts have been made to encourage ISPs to recognise that they have a role to play, certainly in relation to pornographic and paedophile material, where they have been expected to take action. The noble Baroness, Lady Miller, again said that she was disappointed. Her analysis was similar to that of noble friend Lord Whitty. She does not agree with the direction that we have chosen to take. I am afraid that it is not possible to satisfy her in those circumstances. I thank the noble Earl, Lord Erroll, for his concern. I assure him that I can rise to the occasion today. When it was said that we had not given the matter enough scrutiny, I could not help but wryly reflect that a 48-clause Bill that has had about 430 amendments tabled to it seems to me a fair amount of scrutiny. If we took the time and trouble to look at how many times we have debated the same issue, I think that we would refute that charge. I return to the amendment. As I have said, it is not a question of imposing technical measures immediately. We have already made a number of amendments, one of which included a year’s interval before such measures could even be considered. However, this does not mean that everybody who thus qualifies as a relevant subscriber will suddenly find themselves subject to a technical measure once an order has been made. New Section 124G(2), in Clause 10, defines a "technical obligation" as, ""a technical measure against some or all relevant subscribers"." This should be read in conjunction with new Section 124H(3) and (4) in Clause 11, which say that the order must specify the date from which the technical obligation should have effect and the criteria for taking the measure. This gives the Secretary of State the flexibility to make an order that can be targeted—ensuring that those posing most threat can be tackled and those who may perhaps have been unfortunate or have changed their behaviour will be outside such technical measures. In short, while it is clear that copyright infringement reports produced prior to any order being made under Clause 11 remain relevant in terms of whether a subscriber is on a copyright infringement list and is therefore a relevant subscriber, there is sufficient flexibility in the system to ensure that any technical measures are imposed fairly and with fair warning. On this basis I hope that the noble Lord can feel able to withdraw this amendment.