Informationoverlord

One of the very noticeable things to come with the new coalition government has been a very quick overhaul of several of the departmental websites, with things getting even more web2.0 (am I even allowed to still use that term anymore?) than before.

Over at the DCMS for example things are going all, well, bloggy. Minister for Tourism and Heritage, John Penrose, published the first ‘of what I very much hope will become a weekly bulletin describing what I’ve been up to, who I’ve met and – from time to time – my thoughts and reflections on issues that I’ve had to deal with in the week’ (comments disabled of course). All seems quite jolly and a nice idea.

However, that doesn’t explain why Sports and Olympics Minister, Hugh Robertson, who has decided to do something similar – a look forward at the week ahead type thing - “This is the first of what will be regular previews of my week ahead, I hope they will shed some light on the day to day work of a Sport and Olympics Minister” is not on the blog, but under ‘latest news’ instead.

Why is one ‘news’, and the other a ‘blog’ item? All seems a bit unjoined-up to me. DCMS, a quiet word … put them both in the blog feed.

The DCMS has confirmed that spending commitments made by the last government following its Public Library Modernisation Review will not be kept. This means that the coalition will not pursue the £2 million (per annum) spending commitments set out in the Public Library Modernisation Review Policy statement published in March 2010.

What were these?

“These were free internet access in all libraries and to promote library membership as an entitlement from birth.”

Proposal 27: The Government expects that from April 2011 all library services will provide free internet access to users as part of their Library Offer to the public. Government will, under section 8(2)(b) of the Public Libraries and Museums Act 1964, make an (affirmative) Order preventing libraries from charging for internet access. DCMS will ensure that there will be no net additional costs to local authorities in line with the Government’s new burdens procedures.

Proposal 8: We know children benefit in many ways from early access to books and reading29. The Government therefore expects that from April 2011 all library services offer library membership as an entitlement from birth. This might be achieved in a number of ways:
• Offering Library membership at the registration of a birth30
• Offering Library membership along with child benefits
• Offering library membership with Bookstart packs

Two thirds of libraries already provide library membership information with packs which are distributed to all children at 7- 9 months31. DCMS will ensure that there will be no net additional costs to local authorities in line with the Government’s new burdens procedures.

“It also included extending the Public Lending Right to non-print format books, estimated at £300,000 – this has been suspended and will be considered as part of spending review in the Autumn.”

Proposal 34: Government expects e-books to be loaned for free. Government will under section 8(2)(b) of the Public Libraries and Museums Act 1964, make an (affirmative) Order preventing libraries from charging for e-books lending of any sort including remotely.

Proposal 35: DCMS will work with stakeholders to develop the secondary legislation for the extension of the Public Lending Right to non print books to enable simple, cost effective and easy to use arrangements for all public libraries.

This decision is part of £73 million in savings the DCMS is making, which also includes ending free swimming for those aged 16 and under and over 60s.

Not really a surprise, as we are all aware that cuts are going to hit everywhere, but still a little disappointing, especially the decision on offering free internet access.

Was greatly amused today when I came across two blog posts here and here on the Bloggerheads blog about our new Secretary of State for Culture, Olympics, Media & Sport, Jeremy Hunt, and his interesting approach to blogging and Tweeting.

It seem Jeremy just doesn’t really GET IT. He thinks that the way you do these things is to periodically delete old content all together from your blog and your twitter accounts. No, not random one off items but the whole lot, wholesale. Now this is from a man pre-election who said he’d love to be Minister for Technology and who will at least be partly responsible for it in his DCMS role. Apparently as far as his blog goes he only maintains a recent/immediate ‘archive’.

Rumour has it that the Con-Dem nation govt have been trialling the use of a mission impossible app for their tweets and blogs, allowing them to self distruct after a given timeframe. Think Mr Hunt is one of their beta testers.

I know they say that a week is a long time in politics, but … on Monday the Government responded to House of Lords Select Committee on Communications report on the British film and television industries. In response to the Committee’s following recommendation on the video games industry:

We recognise the claims of the videogames industry for support in the face of foreign government-subsidised competition, and recommend that the Government consider providing tax incentives for videogames production.

The government response was:

“The 2009 Pre-Budget Report announced that, whilst recognising the challenges currently faced by the sector in competing internationally, the Government is not currently persuaded that the evidence is sufficiently compelling to justify the introduction of a tax incentive for the development of culturally British video games at this time. The Government remains committed to providing a tax system and business environment that is beneficial to businesses from all sectors, including the video games industry. The Government will continue to look at ways to make the UK tax system more competitive and, as with all decisions on tax policy, will keep the situation under review.”

Fast forward, oh, say, two days and the government, via Alistair Darling announce in their Budget speech the following: “I will offer help to the computer games sector, similar to the steps which are helping restore the fortunes of the British film industry. This is a highly successful and growing industry, with half its sales coming from exports, and we need to keep British talent in this country.”

In the actual text of the budget doc: “The creative industries, including the video games industry, make a valuable economic and cultural contribution to the UK. The Government announces that, following consultation on design, it will introduce a tax relief for the UK’s video games industry, subject to state aid approval from the European Commission.”

Anyone know what sufficiently compelling evidence came to their attention since they said ‘press print ‘on their response to the Lords’ report over the weekend and today when Mr Darling decided there obviously was enough to justify the introduction of a tax incentive??

The Conservative party have published their technology manifesto, which they hope will win over those in and with an interest in the technology industries ahead of the upcoming general election. The manifesto includes commitments to:

On the topic de jour - digital piracy - the party are strangely vague merely stating “We recognise the need to tackle digital piracy and make it possible for people to buy and sell digital intellectual property online. However it is vital that any anti-piracy measures promote new business models rather than holding innovation back.”

Nothing really new in the manifesto, but it does pull together a number of promises made in other statements. Public Reading Stage for all legislation is certainly an interesting one though. It sounds like they envisage a kind of wiki clause by clause based system to allow feedback and comments on legislation - which once the abuse is weeded out, might at least be interesting, even if any comments not made by vested and industry interests are ultimately ignored.

�

The report stage of the Digital Economy Bill at long last produced some real amendments to the Bill, but the biggest one has left some thinking the ‘improvements’ may in fact do more harm.

From the moment the bill was first published last year Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 (CDPA) in future, to reflect fast-changing technology,” found opposition both within parliament - Lord Clement-Jones called it a Henry VIII clause - and with search and social media companiessuch as Google, eBay, Facebook and Yahoo who wrote to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law arguing the “clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments.”

The government who had already amended the clause once were set to amend it further this week but were trumped by Lord Clement-Jones who tabled his own amendment to replace the clause with one of his own.

The government’s proposed amendment would have made it clear that the scope of amendments to Part 1 of the CDPA is limited to Chapter 6 of Part 1 of the copyright Act, and clarified that the clause could only “be used only to make enforcement of rights easier or more efficient, not to define what constitutes copyright infringement”

Lord Clement-Jones’ clause introduced the power to shut down / block access to websites hosting infringing material by allowing “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.”

Lord Young responding for the government - and being in the interesting position (for a change) of making sense - pointed out the amendment was not a good idea for several reasons: (i) the provisions would need to be notified to the European Commission under the technical standards directive…subsections (6) and (7) of the proposed new clause would not count as notification in draft. Without the proper three-month notification, the provision would not be enforceable (ii) 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, and (iii) 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 will cause significant public disquiet.

Lord Erroll who supported an amendment that would have completely removed Clause 17 from the bill, as he would have prefered to see the next Parliament conduct a proper review or rewrite of the CDPA also saw a problem with Lord Clement-Jones’ amendment. ” We have to remember that the Bill does not just deal with streamed video, film and music. It also involves text-it can be applied to ordinary short text and brief things like that. What do search engines do? They search text and reproduce it in an aggregate form so that you can find what you are looking for. That means that, almost certainly, all search engines will be infringing from day one.”

Lord Clement Jones responded that he did not think this a problem. “I do not believe that this will involve thousands of sites. As soon as the ISPs notice that this legislation has gone through, they will alter their behaviour. We have seen what has happened in Sweden where there has been a steep fall in pirate sites, and I believe that it would be exactly the same under this legislation. [I] also cannot accept the Minister’s points about the EU technical directive in this case…If the Minister thinks that the wording of proposed new Section 97B is not precisely apposite for the purpose, it can always be changed at Third Reading to make sure that it is valid. We would welcome amendments to that effect.”

The clause was be put to the vote. It passed by 165 -140, and so is now in the bill.

UK ISP Talktalk reacted strongly to the new clause, calling the measure “draconian” and “futile”. Director of strategy and regulation, Andrew Heaney Heaney said “The amendment seems to require ISPs - and by implication their customers - to pay costs to rightsholders unless we bar a site prior to an injunction being granted against it. The amendment proposes that if a rightsholder’s application for an injunction against a website is ultimately successful, the ISP has to pay the rightsholder’s costs for making that application. This will inevitably encourage ISPs to bar access to a site immediately, in effect turning us into judges deciding which sites our customers can and cannot access.”

It certainly seems that the Lib-Dems have manged to get the bill looking ven more likr America’s DCMS than the government - a feat in itself. How long will sites be blocked? who will review the sites to see if they can be unblocked? It seems to me all this clause now does is as the earl of Erroll said in the debate, give the entertainment indutries yet another stick - this time through lawyers - “to threaten people with huge costs in court unless they roll over and give lots of money up front, so that people end up settling out of court.”

As on the day the bill was first published, Clause 17 must go.

A number of reports appeared last night – such as this one (since update by the Guardian’s Charles Arthur) claiming that the UK government were back-tracking on the so called ‘three strikes rule’ to deal with persistent alleged illegal p2p filesharers. It came as the government published their response to a petition on the government’s e-petition site.

“We the undersigned petition the Prime Minister to abandon Lord Mandelson’s plans to ban individuals from the internet based on their use of ‘peer to peer’ file sharing.”

The government’s response describes the aims of the Digital Economy Bill, and the hope that warning letters will be enough to “secure our aim of a 70% reduction in illegal peer to peer file sharing. If that proves not to be the case, the Bill provides a reserve power obliging an ISP to apply ‘technical measures’ to a customer’s internet account to restrict or prevent illegal sharing. Technical measures might be a band width restriction, a daily downloading limit or, as a last resort, temporary account suspension. A proper independent appeal would be available against application of technical measures. More widely we also include a reserve power to amend the Copyright Design and Patent Act. This will allow us to tackle quickly any misuse of emerging technologies for copyright infringement and provide an element of future proofing.”

What got the media claiming the government had changed its tune came at the end of the response where it states:

“We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases.

We added account suspension to the list of possible technical measures which might be considered if our measures to tackle unlawful file-sharing through notifications and legal action are not as successful as we hope. This is but one of a number of possible options on which we would seek advice from Ofcom – and others – if we decided to consider a third obligation on technical measures. However what is clear is that we would need a rapid and robust route of appeal available to all consumers if we decided technical measures were needed.”

The problem with this is that nowhere in the bill does it actually say the government will terminate the accounts/cut off infringers, in the first place. The government and a media obsessed with talking about ‘3 strikes’ (which again, is not stated anywhere in the bill even though the government has indicated that something of the sort could operate – although a strike could mean 50 or 100 or any other number of ‘alleged’ infringements). Even the relevant section heading in the bill is ‘Obligations to limit internet access’ . According to the Bill’s current text the technical measures employed :

(a) limits the speed or other capacity of the service provided to a subscriber;

(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;

(c) suspends the service provided to a subscriber; or

(d) limits the service provided to a subscriber in another way

I agree with the Open Rights Group who say this ‘backtrack’ is a red herring.

‘Temporary account suspensions’ sound like the government would to suspend accounts for a few hours, or at most a day, to fit most people’s idea of ‘temporary’ and ‘suspension’. We doubt ‘suspensions’ would be so brief. We can assume what the government means to you and me is ‘disconnection’.

Indeed one of the problems with this bill is that it contains a worrying lack of actual detail that is being hived off into ‘Codes’ and Statutory Instruments. Parliament is being asked to sign off on a bill and trust the government to fill in the blanks later. Gordon Brown’s favourite Judge, Simon Cowell , along with the likes of Sir Terry Pratchett (disappointed in you Terry) who have written to the government urging them to stand firm and push this bill through would have been in a panic this am with some of the headlines but can rest assured that the government is still doing their industry’s bidding.

The UK parliament’s joint committee on human rights have published a report criticising the government’s attempts , through the Digital Economy Bill, to tackle illegal file-sharing. They say the bill – as currently drafted - may create over-broad powers, and that some provisions in the Bill are not specified in enough detail to ensure that they will operate in a way which does not risk a breach of individual rights.

The committee looked at the bill and the Explanatory Notes and Human Rights Memoranda. The Committee points out that The Explanatory Notes to the Bill provide a basic explanation of the Government’s view that the Bill is compatible with the European Convention of Human Rights (ECHR) and that the supplementary Human Rights Memorandum accurately identifies a number of relevant human rights issues. However they found that the substance of the analysis in the memorandum adopts practices they had previously criticised – namely relying on Section 6 of the Human Rights Act 1998 to justify their view that broad discretionary powers in a Bill or in secondary legislation will operate in a way which is compatible with human rights. “On the issue of online copyright infringement: the Memorandum does not contain much detail in its analysis of a number of rights; inaccurately identifies the proportionality exercise required; and fails to consider the arguments for justification in any detail. In addition, it relies on the Section 6 HRA 1998 duty on both the Secretary of State and OFCOM to argue that certain delegated powers are appropriate and will not be exercised in a manner which breaches Convention rights.”

Copyright infringement reports

The Committee find it unlikely that the issuing of such report by ISPs will result in a significant risk of a breach of individual internet users’ pivacy rights although they still call on the Government to provide a further explanation of why they consider their proposals are proportionate in the light of the fact that the copyright infringement report and any subsequent list may form the basis for the imposition of technical measures which will have a more significant impact. Here they were referring in particular to the lack of detail about the process provided on the face of the Bill re: a legal limit on the circumstances in which an ISP will be required to disclose a copyright infringement list – how many ‘alleged’ infringements and over what timescale.

Technical measures

The Committee correctly identify that meat on the bones in these proposals in missing from the bill and state that they do “not believe that such a skeletal approach to powers which engage human rights is Appropriate” They find there is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights to respect for correspondence and freedom of expression.

The Committee point out that the entire technical measures mechanism will be created by a combination of secondary legislation and the “technical obligations code”. This means that a number of key features are undefined or extremely broad. They say it is all very well for the Government to say that individual copyright holders will provide evidence and will only seek sanctions against “serious infringers”, but neither of these things is outlined in the text of the Bill and that the standard of evidence expected or the standard of proof to apply has also not been clearly explained.

In their view the government still needed to address the following:

a) the precise intended impact of these proposals on individual accounts, including (i) whether technical measures may include indefinite suspension of an account and whether any service limitations imposed will be for a specified time-frame and/or renewable; and (ii) any potential impact the imposition of technical measures may have on the ability of a user to secure an alternative service;

b) the minimum criteria which would be required to be satisfied before the imposition of technical measures. The Government has indicated that technical measures will follow the issue of copyright infringement notices. It would be helpful if the Government could clarify whether (i) the imposition of technical measures will be subject only to the initial assessment of the copyright holder that it appeared that the individual service user had breached his or her copyright; and (ii) if so, would the same standard of evidence and proof be required for the imposition of technical measures as would be required for the issue of copyright infringement reports?

The Committee recommended that “the Bill be amended to make it clear that technical measures may only be introduced after an assessment by OFCOM of the necessity and proportionality of these new measures, taking into account the impact of the initial obligations code. In so far as it is possible, we recommend that the Bill should be amended to provide additional details on the minimum criteria for the imposition of technical measures, including the standard of proof which must be applied; the “trigger” for the imposition of such measures; and any relevant defences for service users who have taken all reasonable measures to protect their service from unauthorised use and who have not knowingly facilitated the use of their service for the purposes of infringing copyright.” Interestingly the government has already rejected proposed Lords’ amendments that covered just these things.

Right to a fair hearing

The Bill provides for provisions for appeals in codes, however the committee identifies there is little detail about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals’ information on copyright infringement lists. The committee recommends “that at a minimum, the Government must be required to confirm that the First Tier Tribunal will be able to consider whether an infringement of copyright has occurred and any defence that no infringement of a copyright holders’ rights has been committed or knowingly permitted by the account holder.”

Clause 17

The Committee has particular concerns about the new power in Clause 17 that allows for the Secretary of State to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. This provision that has been the subject of much criticism, and lead to government amending the text of the clauseto limit the power and to use the special ’super-affirmative’ procedure to ensure that any proposed changes would be better scrutinised by Parliament.

The Committee remained concerned that, despite this (then promised) move that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate, and the government should explain why parliamentary scrutiny of any relevant human rights issues will be adequate without any power for Members of either House to propose amendments to the draft order.

In essence the Committee are not yet convinced that these parts of the bill do stand up to the government’s assertion that the bill is in full complaince with the ECHR. They also highlight a fact mentioned by many of the Lords’ in recent proposed amendments - that the detail of the bill is being sidelined to codes and SI’s instead of guarantees being made in the primary legislation: a trick this government has excelled in - see the Regulation of Investigatory Powers Act for a fine example of this.

Will the government listen? Probably not. They may, at some point, sacrafice clause 17 if it looks like doing so will guarantee the bill getting on the staute books before the election. Indeed a true cynic might argue that its place in the bill in the first place is designed purely to be a bargaining chip to ensure other measures get through mostly unscathed. We shall see.

The House of Lords have had their second day debating the Digital Economy Bill, and started talking about the issue that takes up most of the bill – Online infringement of copyright, which covers clauses 4-17 of the bill. The first amendments discussed would come before Clause 4.

Lord Razzall moved an amendment to insert a new clause on the obligations of copyright holders that that any ‘copyright holders seeking to take action against subscribers for online copyright infringement must use the process set out in sections 124A to 124E of the Communications Act 2003 except in cases of actual or likely extreme prejudice.’

This clause was mainly aimed at stemming tide of solicitors letters accusing people of illegal file-sharing and the treat of court action unless they pay up. Lord Howard, whilst agreeing that this was undesirable argued that the reduction in this practice should be a natural consequence of the successful implementation of this part of the bill, not a result of our having imposed a legislative block on rights holders “The difficulty of successfully suing someone through the judicial process for these copyright breaches is well established. The large number of people involved in file-sharing, the enormous number of files being shared and the low value of each individual copyright breach all point to our hope that the provisions lead to a significant reduction in illegal sharing without the courts being used.”

Lord Birt and Lord Triesman argued that the current bill is a proportionate response to the problem of illegal file sharing; Lord Whitty disagreed “it is not sensible to approach it by effectively alienating large chunks of the population when there is an alternative. The alternative may take longer, but it is clear that, both in the present system of going to the courts and in the potential of the system proposed in the Bill, proportionality will go out of the window.”

Lord Davies emphasised that the bill is not about criminalising people, and that “the behaviour we are tackling is civil infringement, not a criminal one.” He also said the “Peer-to-Peer file-sharing is already illegal “; a point picked up on by Earl Errol who stresses that the phrase used should be “peer-to-peer unlawful file-sharing.”

Lord Lucas – who declared that his main income from outside of the house is from the sale of copyright material – once again pointed the finger of blame at the copyright holders, in particular the film industry: “People love going to the cinema to see something like “Avatar”. It is an extraordinary experience on a big screen. However, why do the companies not sell DVDs and allow the downloading of copies of the film at the same time? It would not reduce their cinema take; it is nothing like the same experience. It just gives people who would never go to the cinema the chance to see the film. These companies created the piracy problem. They are continuing to create it. We must not, in this Bill, give them the illusion that they can stay where they are and that beating up on their customers is the solution to all their problems. ”

Amendment Withdrawn

Lord Clement-Jones then moved an amendment relating to compliance with fundamental rights, and a statement that the Secretary of State must demonstrate that any measures are proportionate and necessary and balance the rights of public and rights holders under ECHR before they are implemented.

His proposal was supported by Lord Lucas and Whitty, Baroness Miller and Earl Errol who stressed the importance of the bill being compliant with the wording of the new Framework Directive. The Government (Lord Davies) replied that “believe, of course, that the Bill is consistent with the EU framework provisions.” Lord Clement-Jones was not convinced: ” The Minister claimed that the Bill is compliant with EU law. He claimed that elements such as the fact that subscribers can be heard as a right of appeal make the Bill compliant. The reason for the amendment is that we do not believe that the Bill is compliant with those principles. There is a lack of specific statement about the burden of proof, the allocation of costs, and the quality of the evidence. There are many aspects that need to be explicit but are not stated. We need a set of guiding principles.”

Amendment Withdrawn

Clause 4: Obligation to notify subscribers of reported infringements

A group of amendments tabled to clarify the text of the bill including: making clear that the information provide to copyright holders/ISPs is of alleged breach of copyright not of infringement itself; the bar being set too low for the evidence needed by rights holders, in particular by making evidence needed simply the ‘appearance’ of copyright infringement; the removal of the term ‘unlawful peer-to-peer filesharing’ from the obligation to notify subscribers of copyright infringement clause making it about any copyright infringement; and the question of defences for internet subscribers who connection was used by others to download/upload copyrighted material.

Earl Errol stated the issue of ‘alleged’ breach was an example of where the text should be change to ensure compliance with EU law.

Lord Young responded that the text did not need changing as “Clause 4 already expressly recognises that the infringement described in a copyright infringement report is only “apparent”. Equally I think that the copyright infringement reports amount to more than mere allegation. New paragraph (b) requires the copyright infringement report to include, “a description of the apparent infringement” as well as evidence that shows the subscriber’s IP address and the time at which the evidence was gathered, so that there will be-I stress this-a clear and robust audit trail.”

Lord Young also told the Lord the government had provided ‘a draft outline of the initial obligations code’ , which according to Lord Clement-Jones includes statement that “The CIL will facilitate targeted civil action by copyright owners against the most serious alleged infringers”

Lord Whitty was concerned that the scope of the bill seemed to have been expanded beyond dealing will illegal p2p file-sharing and widened to potentially all forms of infringement and over all technologies. Lord Young replied that he could not see how restricting these provisions could do anything other than prevent the possible future beneficial use of the provision should the occasion arise. Lord Whitty remained concerned that having an open-ended extension to other forms of copyright violation – especially ones where rights holders already had the right of redress in the courts was “quite dangerous.”

Baroness Miller questions the effect the drafting of the bill will have on corporate and communal facilities such as Internet Cafes, communal wi-fi, university networks etc, concluding that as drafted it would be “extremely discouraging” to anyone wanting to provide such connection.

Lord Young “We recognise that libraries, other wi-fi operators and open-access providers such as universities serve an important function …We do not think that they are caught as individual service providers, which we think they are not, or as consumers However, the fact remains that they can take easy steps to prevent infringers using their connection. They can apply controls so that file-sharing sites are blocked at a subscriber level, particular protocols are blocked or that the amount of bandwidth available is limited to make file-sharing on such connections unrealistic.” In response to a follow up question of would action be taken against those who didn’t adopt these controls, he added the government had “no intention of penalising communal organisations unreasonably.”

Baroness Miller asked why a person should face having their internet access curtailed in anyway due to the actions of others and points to the fact that if a friend borrows your car and gets caught speeding it will be them, not you who is liable for the fine and penalty points. The bill as drafted however would still make the person providing the connection, the internet subscriber , solely liable.

Lord Davies responded that you had to start somewhere and that if someone received an initial letter they could then take measures to prevent further misuse of their connection if they had not been the alleged infringer themselves.

Lord Clement-Jones, Lord Lucas and Baroness Miller all asked Lord Davies and the government to set out what defences would be available to someone who receives these letters. If not in the bill would they be in the ICR code? Lord Davies avoids answering the question and merely says “. If it reached the stage that the subscriber had got past the early stage and the issue was of such seriousness that the copyright owner was concerned to take court action, all the normal defences under copyright legislation would apply and the defendant would be within the framework of law in the same way as for any other offence. The Bill does not change or challenge that.”

Earl Errol, supported by Baroness Miller, requested that the government commit to giving a legal definition of ‘allowed’ in ‘ a subscriber to an internet access service has allowed another person to use the service’ citing the debated on the Computer Misuse Act and a discussion over the word ‘likely’, which was subsequently dropped from that bill. “In common usage the word “allowed” would mean that I had given positive approval to an action. However, I am not sure that that is the legal definition. It may be that “failure to prevent” is the legal definition…I would like by the next stage of the Bill to have a proper legal definition of “allowed”.”

Baroness Miller added that “the fundamental issue is that the subscriber is still, in the way that this is drafted, in the box labelled “guilty” until proven innocent. The Ministers may shake their heads, but until they have defined “allowed” then the subscriber is in the box marked “guilty” because they are not able to prove that they are innocent without going through the whole rigmarole of what is allowed in the Bill.”

Amendments withdrawn/not moved/unallocated

Lord Razzall also tabled an amendment that sought to add that A “copyright infringement report” is a report ” includes a sworn statement by the person making the report that the information collected has been obtained in compliance with all relevant laws, including data protection and privacy laws, and by persons entitled to gather such information.” Lord Davies responded that this will be cover by the ICR code, and that it was not usual practice to put a requirement in legislation that it should be implemented in accordance with existing legislation.

Amendments withdrawn/not moved.

Meanwhile Lord Mandelson was penning an amendment to be tabled on the controversial ‘ Clause 17′, which gives the government power to amend the Copyright, Designs and Patents Act 1988.

Current clause in bill.

Lord Mandelson’s amended clause would read:

17 Power to amend copyright provisions

In Part 7 of the Copyright, Designs and Patents Act 1988 (miscellaneous and

general) after section 302 insert—
15
“Prevention or reduction of online infringement of copyright

302A Power to amend Part 1 and this Part

(1) The Secretary of State may by order amend Part 1 or this Part for the
purpose of preventing any infringement of copyright by means of the internet if satisfied that—
(a) the infringement is having a serious adverse effect on businesses or consumers, and
(b) making the amendment is a proportionate way to address that effect.

(2) The following provisions apply to the power conferred by this section.

(3) Subsections (4) to (6) do not limit that power.

(4) The power may be exercised so as to make new provision or to amend
25
or repeal provision (whenever made).

(5) The power may be exercised so as to—

(a) confer a power or right or impose a duty on any person;

(b) modify or remove a power, right or duty of any person;

(c) require a person to pay fees.
30
(6) The power includes power to—

(a) make different provision for different cases;

(b) make transitional or saving provision;

(c) make any consequential amendment, repeal or revocation of

provision (whenever made) contained in or made under an Act.
35
(7) The power does not include power to create or modify a criminal

offence.

(8) An order under this section must be made by statutory instrument.

“(9) The Secretary of State may not make an order under this section unless—
(a) the Secretary of State has consulted the persons the Secretary of State thinks likely to be affected by the order (or persons who represent such persons) and such other persons as the Secretary of State thinks fit;
(b) following that consultation, the Secretary of State has laid a draft order and explanatory document before Parliament in accordance with section 302B; and
(c) the order is made in accordance with section 302C.
302B Draft order and explanatory document laid before Parliament
(1) If, after the conclusion of the consultation required by section 302A(9), the Secretary of State considers it appropriate to proceed with the making of an order under section 302A, the Secretary of State must lay before Parliament—
(a) a draft of the order, together with
(b) an explanatory document.
(2) The explanatory document must—
(a) describe the infringement of copyright that the Secretary of State is satisfied is having a serious adverse effect on businesses or consumers;
(b) describe the effect;
(c) explain why the Secretary of State is satisfied that making the amendment is a proportionate way to address that effect;
(d) give details of the consultation undertaken under section 302A(9), any representations received as a result of the consultation, and the changes (if any) made as a result of such representations.
(3) Where a person making representations in response to consultation under section 302A(9) has requested the Secretary of State not to disclose them, the Secretary of State must not disclose them under subsection (2)(d) if or to the extent that to do so would (disregarding any connection with proceedings in Parliament) constitute a breach of confidence actionable by any person.
(4) If information in representations made by a person in response to consultation under section 302A(9) relates to another person, the Secretary of State need not disclose the information under subsection (2)(d) if or to the extent that—
(a) it appears to the Secretary of State that the disclosure of that information could adversely affect the interests of that other person; and
(b) the Secretary of State has been unable to obtain the consent of that other person to the disclosure.
(5) Subsections (3) and (4) do not affect any disclosure that is requested by, and made to, a committee of either House of Parliament charged with reporting on the draft order.
302C Super-affirmative procedure
(1) The Secretary of State must have regard to—
(a) any representations,
(b) any resolutions of either House of Parliament, and
(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft order,
made during the 60-day period with regard to the draft order.
(2) If, after the expiry of the 60-day period, the Secretary of State wishes to make an order in the terms of the draft, the Secretary of State must lay before Parliament a statement—
(a) stating whether any representations were made under subsection (1)(a); and
(b) if any representations were so made, giving details of them.
(3) The Secretary of State may after the laying of such a statement make an order in the terms of the draft if it is approved by a resolution of each House of Parliament.
(4) However, a committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under subsection (2) and before the draft order is approved by that House under subsection (3), recommend under this subsection that no further proceedings be taken in relation to the draft order.
(5) Where a recommendation is made by a committee of either House under subsection (4) in relation to a draft order, no proceedings may be taken in relation to the draft order in that House under subsection (3) unless the recommendation is, in the same Session, rejected by resolution of that House.
(6) If, after the expiry of the 60-day period, the Secretary of State wishes to make an order consisting of a version of the draft order with material changes, the Secretary of State must lay before Parliament—
(a) a revised draft order; and
(b) a statement giving details of any representations made under subsection (1)(a) and of the revisions proposed.
(7) The Secretary of State may after laying a revised draft order and statement under subsection (6) make an order in the terms of the revised draft if it is approved by a resolution of each House of Parliament.
(8) However, a committee of either House charged with reporting on the revised draft order may, at any time after the revised draft order is laid under subsection (6) and before it is approved by that House under subsection (7), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.
(9) Where a recommendation is made by a committee of either House under subsection (8) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House under subsection (7) unless the recommendation is, in the same Session, rejected by resolution of that House.
(10) Subsections (3) to (5) of section 302B apply in relation to the disclosure of representations under subsections (2)(b) and (6)(b) of this section as they apply in relation to the disclosure of representations under subsection (2)(d) of that section.
(11) For the purposes of subsections (3) and (7) an order is made in the terms of a draft order if it contains no material changes to the provisions of the draft order.
(12) In this section the “60-day period” means the period of 60 days beginning with the day on which the draft order was laid before Parliament under section 302B.
(13) In calculating the 60-day period no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”

The Digital Economy Bill was debated for the first time in the UK’s House of Lords this week.

As is the case with the bill as a whole the main points of discussion centred around the provisions to deal with copyright and p2p filesharing, indeed it even offered an opportunity for Peter Mandelson to practice his stand-up comedy routine: ” I recognise that this House is probably the one place in Britain where peer-to-peer file-sharing is associated more with passing notes in the Lords’ tea room than with piracy”

He hit out at critics who have suggested that the government’s policy to tackle the problem of illegal filesharing focuses on coercion, saying this “is quite wrong” and that “there is a primary role for education about the value of copyright, and a very clear obligation on the creative industries to get their act together and build business models that provide access to content at a cost that makes the risk of breaking the law an unattractive option.”

It seemed that some of the critics he referred to were in the Lords. Lord Lucas seemed to sum up the views of many when he questioned where was the stick for the entertainment industries to go with the truck load of carrots the government were providing: ” We also need to bear in mind that the problems now facing the industry are, to quite a large extent, of their own creation. The industry has been extremely slow to listen to the demands of its customers, and has had something of an abusive relationship with them, seeking to punish them before thinking of how to serve them better. It has taken a decade for the industry to produce sensible alternatives to illegal file-sharing, and the fact that a generation of people have become used to an illegality comes down to the industry’s sluggishness. It is still slow. The football people have complained that there are sites where people can download streaming video of premier division matches. All that the companies offer is an annual contract for several hundred pounds. They do not offer per match deals at a reasonable price. If companies treat their customers in that way, they really should not be surprised that their customers try to get round the system.”

The presumption of innocence and due process where also high on the minds of some Lords, with Lord Whitty making the comparison with the theft of a physical product: ” the shoplifters who steal the actual DVD, which is worth a lot more than the rights of an individual download to the rights holders, have a fair trial and are subject to due process. They do not receive a letter, but, at the first attempt of enforcement, they are subject to due process. However, in this system, due process enters the equation only at appeal stage.”

Many of the Lords criticised the government for not delivering a draft of the code which would set out how the process for alerting people about alleged infringement and the appeals process would function. This, the Lords said, was the critical part of the provisions they were being asked to approve. Lord Clement-Jones expressed the views of several Lords when he said “the terms of the all-important initial obligations code must make it clear what those thresholds are. The thresholds must be proportionate and must not be set too low. We should know what they are before the Bill goes through the House.”

Other Lords questioned whether the internet provisions in the bill would actually do more to stifle the growth of a digital economy rather than growing it. Baroness Miller pointed to the potential effect on free wi-fi networks, pointing to the planned town-wide network due to launch in Swindon. She also agreed with Lord Lucas and questioned why the bill choose not to encourage new models but to protect the old models and why it “seeks to make one industry that has seen phenomenal growth, investment and innovation-the internet service providers-pay for the protection of another sector.”

One issue, however, united the Lords more than any other and that was Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 in future, to reflect fast-changing technology.” Lord Razzall summed up the feeling on the clause – called a Henry VIII clause by Lord Clement-Jones - by stating:”Clause 17, which effectively gives the Government power to alter copyright law by statutory instrument, should be rejected. .. I just think that if we are going to alter copyright law it has to be done by primary legislation, rather than by statutory instrument.”

This is a view echoed by Google, eBay, Facebook and Yahoo who have written a joint letter to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law.

According to the four “Clause 17 – which gives any future Secretary of State unprecedented and sweeping powers to amend the Copyright, Design and Patent Act – opens the way for arbitrary measures. This power could be used, for example, to introduce additional technical measures or increase monitoring of user data even where no illegal practice has taken place…This clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments. We all acknowledge that new business models need to emerge to support creative content. They are inherently risky and entrepreneurs rely heavily on there being a consistent and stable approach to copyright enforcement. This clause would inject an unprecedented level of uncertainty in this regard. The industry as a whole had hoped that the outcome of Digital Britain would be a clear, workable set of principles by which the industry could operate. On the contrary, Clause 17 creates uncertainty for consumers and businesses and puts at risk the UK’s leading position in a digital Europe.”

The Bill itself has now goes into a Committee of the whole House of Lords where the first amendments to the bill will appear, and hoefully Clause 17 - for starters - will disappear.