The Digital Economy Bill includes, in clauses 4 to 17, proposals designed to deal with the problem of online infringement of copyright. Readers may be familiar with the arguments about so-called ‘three strikes’ and the imposition of ‘technical obligations’ on ISPs. Particular heat was generated by clause 17, which empowered the Secretary of State to amend the Copyright, Designs and Patents Act 1988 for the purpose of preventing or reducing any infringement of copyright by means of the Internet if satisfied that the infringement is having a serious adverse effect on businesses or consumers.
The House of Lords has been debating the Bill in its most recently amended form. One opposition amendment which is intended as an alternative to clause 17 has been passed and has caused immediate controversy.
The controversial amendment is Amendment 120A. It proposes that the courts should have power to grant an injunction against a service provider, requiring it to prevent access to specified online locations, namely those locations with a substantial proportion of content that infringes copyright. The amendment was greeted by an ‘outraged’ Internet Service Providers Association with a fiercely condemnatory statement. The Open Rights Group has condemned it saying that the amendment would lead to sites hosting user-generated content to be routinely blocked by ISPs under the proposed court orders. Professor Lilian Edwards in her Pangloss blog expressed serious concern about the chilling effect on free speech.
After the clause was passed and so profoundly criticised, Lord Clement-Jones responded in a blog post which concluded ‘[we] are not seeking to censor the internet but are responding to genuine concerns from the creative industries about providing a process whereby their material can be satisfactorily accessed legally’.
And all this over an amendment that is opposed by the Government and is unlikely to make it into any final version of a Bill – a Bill which might not itself make it onto the statute book before the election.
To understand all the concern, one has to realise that this is a new approach that does have significant support. In particular, both Liberal Democrat and Conservative peers supported the amendment. Tony Ballard, partner at London media and entertainment law firm Harbottle and Lewis, has issued a statement in support, describing the amendment as an ‘ingenious solution’ and saying that while the amendment ‘may need some drafting refinement in the course of its passage through Parliament, for example to refine the definition of “online location” so as to focus the remedy on specific parts of YouTube’s site rather than its entirety … there will be plenty of opportunities to amend it … [and it] is potentially a better solution than clause 17 and is being introduced by a better legislative process’.
There is a real possibility that a similar approach might eventually be taken and that, even though there is little chance of the amendment becoming law immediately, it may alter the argument.
For those interested in the detail, the full amendment and certain important statements about it are set out below.
The Text of the Amendment
Amendment 120A (previously Amendment 112) proposes the insertion of a new clause 17 as follows:
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Preventing access to specified online locations |
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In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert— |
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“97B |
Preventing access to specified online locations |
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(1) |
The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court. |
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(2) |
In determining whether to grant an injunction under subsection (1), the Court shall have regard to the following matters— |
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(a) |
whether a substantial proportion of the content accessible at or via each specified online location infringes copyright, |
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(b) |
the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringing content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both), |
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(c) |
whether the service provider has itself taken reasonable steps to prevent access to the specified online location, and |
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(d) |
any other matters which appear to the Court to be relevant. |
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An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought. |
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(4) |
Where— |
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(a) |
the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and |
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the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken, |
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the Court shall order the service provider to pay the copyright owner’s costs of the application unless there were exceptional circumstances justifying the service provider’s failure to prevent access despite notification by the copyright owner. |
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(5) |
In this section— |
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“copyright owner” includes a licensee with an “exclusive licence” within the meaning of section 92 of this Act, |
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“infringing content” means content which is produced or made available in infringement of copyright, |
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“online location” means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible, |
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“operator” means a person or persons in joint or sole control of the decisions to make content accessible at or via an online location, and |
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“service provider” has the meaning given to it by section 97A(3) of this Act.”” |
The Case for the Amendment
The Liberal Democrat peer, Lord Clement-Jones, who moved the amendment justified it in the House in the following terms:
‘In Committee, the view on these and other Benches was that Clause 17 should be left out of the Bill. …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. … 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, ….
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, … 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. … 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.’
The full text of his speech in support can be found at the bottom of the page here and his later blog post in justification can be found here.
Voices of Opposition to the Amendment
The Internet Service Providers Association’s statement was as follows:
‘… this amendment has been hastily constructed and rushed through at report stage without due consideration of the implications or consultation with the interested parties that would be affected. …The many associated legal, technical and practical issues have simply not been debated in nearly enough depth. For a policy of such gravity, this is negligent.
Lord Clement-Jones correctly noted in proposing his amendment that the courts in fact already have the power under Section 97A of the Copyright, Designs and Patents Act to grant an injunction requiring ISPs to block access to sites that contain unlawful copyright content. ISPA would agree that 97A strikes an appropriate balance between the interests of different parties and leaves the court free to consider each claim on its merits and independently of other factors. Amendment 120A, however, abandons this balance, introduces a bias in favour of one party (rightsowners) and limits the court’s discretion to judge each case on its merits.
ISPA is particularly disappointed that the Lords supporting this amendment drew parallels with the model of network-level blocking administered by the Internet Watch Foundation. The suggestion that a framework developed to fight against the distribution of criminal images of child sexual abuse is appropriate to tackle allegations of civil copyright infringement is incomprehensible.
This amendment is misjudged and disproportionate and this Bill is a wholly inappropriate place to introduce this debate. Other countries have explored similar policy options but surfaced these concerns and focused their policy debate accordingly on the most egregious content offences in the cases where the policy has progressed at all. ISPA has been a long term advocate against any form of network level blocking, as it is only effective in reducing inadvertent access, and believes the Peers behind this amendment should consider the available research, which supports this view.’
Lilian Edwards has a good deal of analysis of the possible effects of the amendment on her blog at http://blogscript.blogspot.com/ as well as links to other comments.
