It is always useful to have a few general words to say at the beginning of any amendment when the Chamber is clearing. I shall try to do a "David Coleman" for a certain period of time until I know that the Minister is able to hear what I have to say.
The purpose of Amendment 20 is to ensure that the same approach is adopted under new Section 134B, inserted by Clause 2, for all relevant communications networks, both fixed and mobile. The current text appears to draw a distinction between the reporting of fixed networks and mobile networks. In an era of ever-closer integration and convergence of services over the respective networks, such a distinction seems inappropriate and misleading as it perpetuates the idea that there are completely separate and distinct markets which do not impact on each other. This is increasingly no longer the case. In the last meeting of the Committee, we discussed the whole essence of convergence and the fact that we are now in a post-convergence age. The services conveyed are similar regardless of the plumbing. This new Section 134B should reflect that. I beg to move.
This amendment might be based on some confusion about the meaning of subsections (1) and (2) in new Section 134B. I wholeheartedly concur with the analysis of the noble Lord. The intention is that the issues covered in subsection (1) are all those relating to networks, whether fixed, mobile or satellite networks, or networks based on other technologies. The issues covered in subsection (2) relate to services provided in relation to or over those networks. We are not making a distinction and recognise the point that the noble Lord, Lord Clement-Jones, drew to our attention.
Turning specifically to the wording of the amendment, we consider the inclusion of geographic coverage of the different UK networks to be an important part of the report because geographical coverage matters from an economic and social perspective. That being so, I believe it should remain within the scope of the report. The other day, we debated the importance of universal coverage. Spectrum is used for a variety of services that fall within the definition of electronic communication services, mobile services and broadcast TV/radio being the most obvious. Spectrum is also used for some point-to-point communication links, in which form they can be an important wholesale input to other services. For example, point-to-point microwave links are sometimes used to provide connection to radio base stations, especially when they are geographically remote. The use of electromagnetic spectrum is included separately in new Section 134(b)(2) as services matters. Spectrum itself is not a physical network, which is why it is included under services so that the report will include the type of services provided when using the electronic communications network.
I trust that, in the light of that explanation, the noble Lord will consider withdrawing his amendment.
I thank the Minister for that helpful clarification. I suspect that this will be one of the easier amendments that he has to deal with today. We will consider his reply carefully. In the mean time, I beg leave to withdraw the amendment.
Amendment 20 withdrawn.
Amendments 21 and 22 not moved.
Moved by Lord Lucas
23: Clause 2, page 3, line 41, at end insert-
"( ) the resilience of the networks to disruption by physical damage or loss of power supply,
( ) the ability of the networks to allow citizens to communicate with each other, and authorities to communicate with citizens, during an emergency"
I shall speak also to Amendment 26. These amendments amplify the scope of the report that is the subject of this clause. My reasons for adding these three items are that some key aspects of the network do not seem to be included in the rest of the, admittedly quite extensive, wording in this clause.
First, Ofcom should have regard to the resilience of the network. In the past year or two, we have been through a period when the resilience of the economy and our banking protection system was tested. It is a good idea to look at these matters before we hit a crisis. I do not think we need to specify what kind of crisis might hit a network. It could be anything from power difficulties to difficulties relating to other kinds of incidents: anything that could impact on the performance of the network. We are going through a period when the resilience of the network is being systematically decreased.
During the big boom in building mobile services, we were putting in base stations with one or two weeks' reserve power capacity so that the mobile network could stand quite a long period of difficulty, such as being unable to get to base stations because of the snow. It gave you a week to get there. Now, we are putting in base stations that have only 24 hours', sometimes even less, reserve power capacity. If we continue on that pattern, which Ofcom appears to be allowing solely on an economic basis, we will end up with a network that is quite fragile. That sort of thing ought to be part of Ofcom's remit when it comes to this report.
Secondly, going back to my original complaints about Ofcom's lack of attention to citizens, when we had the bombings on
I know there were reasons why communications were disabled in those particular circumstances, but when we are doing a report on the communications system, we really ought to understand how much a key part of people's lives we have allowed mobile communications to become. It is important that we should seek to preserve that, in circumstances when the Government want to have an effect on how people behave. If, for some reason, they want to restrict people's movements, for example to prevent the spread of a disease, they could not do that without communicating properly with people. If you have a communications system-particularly a mobile system-which falls over in an emergency, you are going to be unable to do what you need to do.
Amendment 26 picks up an additional circumstance to which Ofcom should have regard. It is not only physical criteria and physical disruption of the service which matter. There can be circumstances, going back to
My Lords, it may be for the convenience of the Committee if I speak to Amendment 30 at this point. My amendment is properly grouped with my noble friend's, but it raises a slightly different though highly relevant point.
GPS satellite navigation systems are by now fairly ubiquitous, but there is much misunderstanding about how they work and the robustness or otherwise of the system. I intend to give the Committee a brief introduction to GPS, but it will be a gross simplification of an ingenious system.
A constellation of satellites has been launched by the US Government which operates the system as a free good for the world, although the primary motivation was obviously military. GPS provides highly accurate positioning and timing. Ground stations operated by the US Government track, communicate with and control the satellites. The ground stations predict and provide high-accuracy orbit and clock information for each satellite. These data are transmitted to each satellite. Each satellite transmits its high-accuracy orbit and clock information as well as coarse orbit and clock information for all the other satellites to the receiver- that is, your GPS hand-held unit or your sat-nav in your car.
The clever bit is as follows. The satellites continuously transmit their time-stamped signals. These travel at the speed of light-it is not instantaneous-at about 300 kilometres per millisecond. This means that the distance from the satellite to the receiver can be calculated accurately. The receiver uses signals from several satellites. By performing something akin to simultaneous equations, the receiver can determine position and height above sea level. Also, and most importantly, the time can be calculated to within around 40 nanoseconds, which is not very long since a nanosecond is a billionth of a second.
So far, so good; but there is a problem. The GPS satellite emits its signal at a power of about 100 watts, which is roughly equivalent to a light bulb, from 20,000 kilometres away. Therefore the signal received on earth is vanishingly weak and can be swamped by, for example, natural atmospheric conditions during high solar activity. It is also easily swamped by locally generated signals. This has already occurred accidentally in San Diego and elsewhere due to the malfunction of legitimate equipment. But it can also be done with malign intent using a GPS jammer, which needs only about one watt of power to be effective. Details of the necessary technology and sources of supply are inevitably available on the internet. They are often bought to overcome a vehicle's security system or to bypass a rental vehicle's charging system. GPS jamming can cause obvious difficulties for navigation and positioning systems, but the loss of the timing signal could be extremely inconvenient for certain specialised operations.
GPS is a space-based system, but there is also a terrestrial system called e-Loran, which should not be confused with the older Loran systems. E-Loran is nearly as accurate as GPS and provides a good timing capability. The system of operation is basically the same as for GPS, but the transmitters are land-based and have outputs in the multi-kilowatt range. However, the principle of measuring the time of flight of the radio signal remains the same, and because much higher powers can be used with a terrestrial system, it is much harder to jam than GPS. Further, since the e-Loran system operates on a different frequency range, it is unlikely to fail at the same time as GPS.
The same cannot be said for the EU Galileo system. I can well recall being told by Ministers at the Dispatch Box that Galileo can be used for safety-critical applications, and I believed them. But the problem is that Galileo operates using more or less the same system and on the same frequency as the US-operated GPS system. I have also now found out that it can be interfered with very easily, and I do not believe that the science and technology has changed significantly over recent years. So my first question for the Minister is this: in the light of the ready availability of GPS jammers and the associated technology, is he of the opinion that Galileo can still be used for safety-critical applications or those that affect critical national infrastructure? If he is not of that opinion, why have we expended huge amounts of effort and money on Galileo? What can Galileo do that a combination of the US GPS and e-Loran systems cannot?
Opposition amendments are sometimes thought to be unworkable, unnecessary or wrecking. My amendment could fall into the unnecessary category, as I know that the Government are already on to the case and that the noble Lord, Lord West, has been heavily involved, particularly with e-Loran.
Last November, I attended a series of GPS jamming trials off Tynemouth in the north-east which had been organised by Trinity House. At one point, my own hand-held GPS suggested that I was in Romania. More disturbing was that the GPS on the "Galatea", Trinity House's own vessel, was inaccurate, by only a few kilometres, but it was nevertheless believable. The dangers are obvious. Of course, I am not naive. I expect that Trinity House would like to run the UK part of the e-Loran system, and it already has a trial transmitter in Cumbria. However, it does not seem to me that e-Loran is a particularly expensive system in comparison with a space-based one, especially as there is already a legacy Loran infrastructure in place with 72 per cent of the world's 50 busiest ports covered by Loran.
To sum up my point, why have we invested, and continue to invest, in Galileo as a second celestial system when e-Loran is much simpler, cheaper and does not have the same vulnerabilities? I hope that the Minister can tell us how he proposes to meet the challenges I have identified.
My Lords, I thank my noble friend for raising these important points. I hope the Minister will be able to confirm that the concerns raised by my noble friend in Amendment 23 are covered under new Section 134B(1)(h), which states that Ofcom's reports under this section of the Bill must include,
"the preparations made by providers of UK networks for responding to an emergency, including preparations for restoring normal operation of UK networks disrupted by the emergency".
It seems sensible that matters such as the resilience of networks to physical damage and loss of power are considered under this section, and that emergency situations should include the ability of the state to communicate with its citizens. If these issues are not dealt with under this section, I would urge the Minister to listen to my noble friend and ensure that they indeed are properly taken care of.
On Amendment 26, I feel that the most important issue is whether, when counting an exceptional load on a network as an emergency, Ofcom would be able to differentiate between busy periods, such as immediately after a football match or at rush hour, and other more significant emergencies, such as a terrorist attack. Both, arguably, could account for an exceptional load. Can the Minister clarify whether such a differentiation would be possible?
On Amendment 30, I thank my noble friend Lord Attlee for giving such an erudite explanation of the GPS and other systems. I would simply-I am not sure that that is the right word to use after listening to my noble friend-ask the Minister whether the Government believe that Ofcom has the necessary expertise to carry out this important task, or whether another body or combination of bodies, or perhaps even the Government themselves, should compile such a report.
My Lords, I thank the noble Lord, Lord Lucas, for drawing our attention, as usual, to some key issues.
I believe that the first amendment tabled by the noble Lord, Lord Lucas, is an attempt to clarify what is meant by resilience in terms of communication infrastructures, and what the principal objective of maintaining resilience should be. I understand his intention in proposing that such detail be drafted into the clause, but in my view this will narrow its meaning and limit its applicability and therefore its value.
We set out the requirement to report on resilience issues in new Section 134B(1)(h) and (2)(f). Subsection (3) goes on to specify important elements of the preparedness that we are looking for. The effect of the first part of the amendment would be to narrow the field of risk on which Ofcom would be required to report. Physical damage to networks, as we saw in Cumbria last year, has a significant impact, and the impact of a loss of power is well understood. However, the effect of this amendment would be to rule out or demote the risk to resilience posed by other important issues, such as industrial action, staff shortages through pandemic flu, or cyber or other types of attack.
The second part of the amendment attempts to define the point of resilience. In new Section 134B(1)(h) we require Ofcom to report on the preparedness for an emergency and the ability to respond to and recover from one. I well understand the point that the noble Lord, Lord Lucas, was making in relation to the terrorist attack of 7/7 when he said that mobile phones were cut off. I am not sure whether they were cut off, or it was just that the load on the network meant that it could not cope with the volume of calls. In relation to that, the noble Lord, Lord Howard, asked whether you could differentiate between the two. Although my knowledge is not as extensive or up to date as it should be in view of my telecom background, I doubt that you could. I shall write to him on that because obviously it is an important point.
In planning any network there is a limit to what you can do economically. Costs would spiral out of proportion if you tried to meet the maximum load that could occur in any eventuality. That would mean that, for much of the time, a lot of equipment would be doing nothing. The point I am trying to make is that there is a balance to be struck.
The second part of the amendment attempts to define the point of resilience. We require Ofcom to report on the preparedness for an emergency and the ability to respond to and recover from one. Requiring Ofcom to comment on citizens' ability to communicate with each other during an emergency would therefore not add anything of significance to the existing text. We accept the principle of what is being said about the importance of a resilient network and its ability to recover but we do not think that this is the right wording. In any event, I can assure the noble Lord that the issue is covered in the current wording.
As for communication with the authorities, there is already an obligation on companies which provide links to the 999 service to prioritise those services above all others. Ofcom is already involved in these arrangements through its implementation of the universal service obligation which is laid down by European law. We see no need to include a report on such arrangements in the requirements which we seek to impose as the companies already have that duty.
As for the broader question of how authorities communicate with citizens during an emergency through techniques such as cell broadcasting, the policy is still under consideration and any legislation that is required to achieve better communication would need to be considered separately. It would therefore not be appropriate to require Ofcom to report on such developments. However, this important issue is being considered, and I am prepared to give further details on it if necessary.
I thank the noble Earl, Lord Attlee, for his erudite explanation of Amendment 30. I learned quite a bit about GPS from his contribution. I am sorry, I have skipped ahead. I want to deal first with Amendment 26.
Amendment 26 seeks to expand the definition of "emergency" in relation to the requirement on Ofcom to report on network and service matters. I am sympathetic to the intention of the amendment insofar as the possibility of networks failing through being overloaded has to be taken seriously, but the term "disruption" already includes the possibility of exceptional loads being placed on networks and thereby causing disruption. I understand that the objective of most attacks on on-line services now is to swamp the underlying technology and thereby cause it to stop working. This is called a denial-of-service attack. This risk is now so well known that it serves no purpose to add it into the definition of emergency. Disruption as a concept must be understood to include the stress on networks arising from overloading and it would be unhelpful to give such emphasis to one of many ways in which networks can be disrupted. We understand the importance of what the noble Lord, Lord Lucas, is saying but we believe that the issue is better addressed in the legislation currently proposed.
I turn to Amendment 30. The noble Earl, Lord Attlee, is right to draw our attention to the increasing use and importance of satellite navigation systems to support a wide range of important activities in providing both accurate positioning and precise timing. I cannot give the noble Earl the assurance he seeks that either the GPS or the forthcoming Galileo system cannot be jammed. The same is true for all other GNSS services provided by the Russians and the Chinese, among others. Unlike GPS, which was built for the US military, Galileo will be a civilian enterprise. Apart from the free service which will be available to all, and which will be complementary to the GPS service, there will be four other signals for commercial and public use. One of these will be encrypted and will provide protection from spoofing signals that can be the basis of a denial-of-service attack.
These channels will be used in many applications, including those that are safety critical. The protection of the critical national infrastructure is a key aspect of our national security policy. The Government have tasked the Centre for the Protection of National Infrastructure to engage with the management of such infrastructure to improve its security and resilience. This activity is not defined in statute and it would be wrong for the discretion of the authorities to define what is critical to be unduly fettered in that way. Nevertheless, I can assure the noble Earl that the use of global navigation systems in the critical infrastructure is a matter of interest to CPNI and the relevant government departments. CPNI working with industry is the right way to manage any risk in this area.
I note that the noble Earl believes that a combination of GPS and the Loran land-based system would give us diversity and resilience. It is now a matter of public knowledge that the US authorities intend to remove funding from a large part of the Loran network that they support. The implications of such a decision for the future of the Loran network or future enhancements have yet to be assessed. We should not rely solely on the Loran system to provide diversity. The Galileo system is on track. The Government believe that it will provide value for money and diversity of supply and will benefit those who increasingly use location and timing services. Against that background, I believe that it is unhelpful to give Ofcom a separate and narrowly focused duty to report on a service that does not fall within its existing remit.
In the light of the points I have made, I hope that the noble Lord and the noble Earl will consider not pressing this group of amendments.
My Lords, I am grateful for the Minister's response, but I have a couple of supplementary questions that I am sure he will enjoy answering. First, he mentioned spoofing. I understand his points and I am confident that he is absolutely right on that. I am not sure that I got the correct term. My concern is the GPS signal being smothered so that there is no signal at all-so the GPS and timing systems will not work. Secondly, I also asked about Galileo. I asked what Galileo can do that GPS cannot, especially when it is in combination with e-Loran. That is the key question. What can Galileo do? What does it give us that we did not have with GPS?
GPS jamming incidents are monitored by the US Coast Guard and dealt with on a case-by-case basis. I have no information on the security of the Russian system, GLONASS, or the Chinese Compass system. Galileo is not yet built, but there will be a Galileo security monitoring centre. The European Commission is considering a number of possibilities including a signal monitoring facility. A series of procedures will be put in place by the European Council to take effect should the system itself be attacked. The security monitoring centre will be responsible for implementing these.
What can Galileo give us? It can give us some diversity of supply and extra resilience, a competitive network, and a wholly dedicated civilian network. This is perhaps not the right time to do a detailed comparative analysis, but if there is further information that I can supply, I would be happy to write additionally to the noble Earl on a cost-benefit analysis of Galileo. As for the other points raised by the noble Lord, Lord Lucas, I have addressed those previously. In the light of the explanations and assurances given, I ask that the noble Lord and the noble Earl not press the amendments.
My Lords, I shall take comfort from the replies that the Minister has given, and he can take comfort from the fact that, should what he has said prove to be wrong and Ofcom's report not cover the things that I care about, it may well be my noble friend Lord Howard of Rising who has to deal with my ire. I beg leave to withdraw the amendment.
Amendment 23 withdrawn.
Moved by Lord Lucas
24: Clause 2, page 3, line 41, at end insert-
"( ) the services on offer over each platform, including details of wholesale arrangements and service competition,
( ) the impediments, barriers and constraints on citizens, consumers and businesses in accessing electronic communications services and information society services"
My Lords, Amendment 24 deals with the same part of the Bill and seeks to insert in there the consideration of competition and of the services provided to customers. It is important in looking at the structure, the companies and the services involved that we do not forget that we are dealing here with some pretty large commercial forces that naturally tend towards monopoly and towards preserving their own position, in a market that ought to be fast-changing and evolving. It ought to be part of Ofcom's job to ensure that competition is unfettered and that consumers are receiving the services that they ought to be. That seems to be central to the job that Ofcom should be doing. I beg to move.
My Lords, I support the amendment. There are many admirable aspects to the Bill, but it focuses heavily on infrastructure issues and has perhaps insufficient emphasis on ensuring that consumers and citizens can access useful services over that infrastructure.
Having next-generation fibre or a suitable radio spectrum for mobile networks is of value, of course, but it is of little value unless it actually achieves affordable, accessible services for consumers and citizens. They do not care if infrastructure is near them, but they certainly care if they can access affordable services with as few limitations as possible. The amendment would be beneficial in ensuring transparency of those not-spots. There is a certain amount of disbelief that my own particular not-spot, whether for radio or for digital, will be readily disposed of once the digital switchover happens. After the Bill becomes law, there will continue to be a number of areas where we need to keep a check on what is happening. The amendment would certainly help to identify the places, consumers and citizens who had yet to gain the wide choice of affordable, competitive services. It would be helpful if the Government, in considering how to address this whole area when thinking about Report, might do so through reporting requirements.
My Lords, we on these Benches agree that the two areas identified in the amendment are crucial to the success of the UK's digital economy. Access to, and competition in, services offered over communications networks are important elements in this sector, so it is disappointing that the Bill does not deal with those issues. Clause 2, though, is about Ofcom reports on infrastructure. The categories in new Section 134B are very focused on the pipes rather than the poetry. Does the Minister think it appropriate for services to be included in this section? If not, will he give the House some assurances that Ofcom or the Government will look at these areas at another time?
My Lords, the reports that we are asking Ofcom to compile under new Sections 134A and 134B of the Communications Act are intended to present a health check on the nation's communications infrastructure and services. As such, we have thought hard about the matters to be covered in the report and about what it needs to include to enable a good picture to emerge of the state of the nation's communications infrastructure and services. We have covered the ground thoroughly. Wholesale arrangements, for example, are covered in new subsection (1)(f). I am not sure exactly what is meant in this amendment by "service competition" but new subsection (2)(b) requires the report to cover the different types of services provided in the UK.
I turn to the issues around accessing digital services. The ability of all in society to engage with and benefit from digital services is of great importance. The Digital Britain report gave Ofcom a specific role, leading to the Digital Participation Consortium, which brings together the Government, the private sector and the third sector to work to reduce the barriers that people face in getting online. That addresses the concerns that the noble Baroness, Lady Howe, expressed. Barriers relating to infrastructure will already be covered by the report. A report on infrastructure is not the right place for other issues, such as skills, confidence or affordability, to be considered. We expect that the Digital Participation Consortium will shortly publish a national plan for digital participation. Issues around access to digital services will be more properly covered in reports on progress on the national plan.
If one looks at the digital, broadband or even the mobile market, one could hardly say that these are not highly competitive environments with a wide range of providers. I am not by any means preaching complacency, otherwise we would not have embarked on a Digital Britain report. We know that we still have work to do to ensure that we do not create what is described as the digital divide. I share and understand the concerns expressed by the noble Lord, Lord Lucas, and the noble Baroness, Lady Howe. We believe that we have the balance right in the current legislation. We also referred the Committee to the Digital Participation Consortium, which will shortly publish a national plan, as I have said.
While I do not in any way disagree with the noble Lord about the importance of these issues, I do not agree that they should be a part of the infrastructure report. Therefore, in the light of the reassurance and explanation that I have given, I invite him to withdraw the amendment.
My Lords, before my noble friend withdraws his amendment or comes back to comment on it, can the Minister tell us a little more about the national plan? When will it come into being? Will it come into being after this Bill passes? Will we get a chance to look at it in the light of the recommendations? What is the review situation?
I apologise to the Committee for not being able to be here last week. A family funeral kept me away. I continue to be concerned about rural access to digital opportunities, which I have raised in this House on many occasions, and which I suspect the noble Lord, Lord Whitty, covered earlier in his amendments. My noble friend Lord Lucas's amendment gives me a chance to raise this again. I would have raised it last week but I could not be here. Surely it would be beneficial if we had some response to, or wider knowledge, of how the national plan would apply to the Bill.
I thank the noble Baroness for her contribution. We share her concern about rural access. The aim of the Digital Britain report is to ensure that we have a universal service offered on broadband. I have not got with me information on when the national plan will be published, unfortunately. Ah! I have some inspiration from the Box. Ofcom and the consortium are working on this and they hope to publish this spring. Of course it will be made available, and I agree that we should have an opportunity to discuss the content. Obviously it will make a valuable contribution to the points that have been made by the noble Lord, Lord Lucas, and the noble Baronesses, Lady Byford and Lady Howe.
The Minister mentioned the national plan. I remind your Lordships that in 2002 we launched an inquiry, which I chaired for the Select Committee on Science and Technology, into the microprocessing industry. We produced a report called Chips for Everything, in which we looked very closely at the impact that producing a smaller and smaller microchip would have on future technology and on the development of all the things that we are talking about now.
As part of that process, we also looked very closely at what was happening in California-that part of America in which these things were developing at such a rate. Our report identified and very much emphasised that no one knows the impact of producing smaller and smaller microchips. We could not foresee the things that have happened in the past five years, and we have no idea what will happen in the next five years. The people who will make full use of this opportunity will be the technicians, and there will be demand from the public. For God's sake, let us not produce a national plan that restricts the development of the wonderful opportunities that will still come from these ever growing technologies.
I thank the noble Lord for reminding us of what I think is referred to as Moore's law, by which the number of transistors on a chip is expected to double every 18 months. I think Moore predicted that some time in the mid-1970s, and it has been proved to be true. The noble Lord is right to remind us that it is difficult to predict the effect. We have gained some experience over the past decade or so from the huge expansion of services and facilities, but his point is valid.
My Lords, I am less content with the Minister's response on this. It is as though we are setting out to produce a report on Britain's road network without considering the traffic or the people who use the roads. The new section does not mention sources of demand or whether the customers are satisfied with the infrastructure. The Minister talked about the mobile network communication system being competitive. Yes, but the competition is restricted; only a limited number of companies are allowed to compete, and new companies will find it extremely difficult to come in under the arrangements which the Government are proposing. In those circumstances, it is sensible to ensure that Ofcom, in considering the infrastructure, looks at the use to which it is being put. However, I see that I am not getting support from my own Front Bench on this, so I had better leave the matter there. I beg leave to withdraw the amendment.
Amendment 24 withdrawn.
Amendments 25 to 27 not moved.
Amendment 27A (in substitution for Amendment 27)
Moved by The Earl of Erroll
27A: Clause 2, page 4, leave out lines 25 to 32
First, I declare not a financial interest but an interest as a member of Nominet UK's policy advisory body for several years, so I am fairly well acquainted with some of the affairs of that company, which runs the .uk domain space on which we rely. In principle, I see exactly why the Government would like to have reserve powers over Nominet. Nominet was originally owned by the people who got people to sign up for domain names, so perhaps the current governance structure is not the most suitable one for something that is really a .uk plc asset and we need extra powers and/or to reorganise the governance of the company. Moves are being made in that direction at the moment.
I have tabled these two amendments because Nominet was concerned about a mistake in Amendment 27-I spotted it just in time, although I know that it was also spotted by the Bill team-which sought to take out two lines too many; the lines actually refer to another new section on preparing reports. I have asked to delete all the stuff to do with asking Ofcom to report on Nominet. Why is Ofcom involved in this? Nominet is not a regulated industry; Ofcom is a regulator, so why should the Government want Ofcom to report on Nominet and the domain name space? I can see that it comes under telecommunications and looks as if it is in the same ambit, but some of its stuff does not touch on the Ofcom area and is not Ofcom's responsibility. Therefore, there may be circumstances in which Ofcom is not the most suitable body to report, should we require such a report, and if we feel there is a challenge in this area. Surely the Secretary of State could ask anyone to prepare a report, as Secretaries of State do when they see that things are going wrong in other areas. We have had many notable reports recently on other IT matters, such as losses of data and other such significant matters. I repeat, why should Ofcom report on Nominet? Is there, therefore, an intention to start regulating Nominet? What is the challenge? Why is Ofcom involved? That is what these amendments seek to find out.
My Lords, I wish to speak to Amendment 29. It seems to me that most of us are mystified about why the Government should wish to nationalise Nominet. I agree that it is necessary to have some reserve powers to be able to deal with circumstances that arise which threaten the national interest; for example, if someone started carpetbagging Nominet or something else untoward was to happen. However, I want to be sure that, should the Secretary of State trigger this clause, he makes it absolutely clear what it is that concerns him, and that he gives sufficient time for consultation.
The Explanatory Memorandums that go with the Bill are not very clear on this provision and include some descriptions of untoward activities which do not seem to me to correspond to reality. I will not go into great detail about it now, but certainly the description of drop-catching is completely wide of the mark and bears little relation to the actual activity. I am puzzled that the Government should feel so twitchy about this. I should like to be sure that, should they act, they are totally clear, open and consultative about the way that they do it.
I am grateful to the noble Earl, Lord Erroll, for tabling Amendments 27A and 30A. The effect of these two amendments would be to remove from the Bill both the Secretary of State's power to request Ofcom to report on internet domain names and Ofcom's power to gather the necessary information. From what I understand, the noble Earl has concerns-he has expressed them today-about the involvement of Ofcom in compiling reports on domain names and about the costs to the industry.
Given the importance of a smooth running domain name system to the internet economy-I do not think that anybody in the Committee would dispute that-this provision will allow the Government, if they feel it is necessary or if they wish, to be better appraised of domain name issues if there are developments that they feel warrant a formal report. I stress that it would be a case of the Government feeling that there were developments; this is not a fishing trip. There ought to be circumstances that are capable of being justified. The Government do not expect to use this provision for routine matters. I should also state that this provision is meant to stand alone and is not linked specifically to the other clauses in the Bill on domain names. However, it is possible that the Secretary of State might wish to request a formal report from Ofcom to assist him in deciding whether or not to exercise the powers in those clauses. But I agree with the noble Lord, Lord Lucas, that the Secretary of State ought to be capable of validating the need to involve Ofcom.
Given Ofcom's existing experience of communication markets, albeit not specifically on domain names, we believe it probably is the most suitable body to carry out this reporting task for Government. However, I assure noble Lords that it will be up to the Secretary of State to specify both the timing and the subject matter of any report. This provision does not empower Ofcom to gather information of its own volition on domain names. Furthermore, there is no power for Ofcom to regulate internet domain names. Again, let me stress that this is not the slippery slope for Ofcom to have that power, nor is there any intention to give such a power. As long as Nominet continues to function in a way that benefits UK plc, it seems to be a fair system of allocating domain names. If it ain't broke, why fix it? Some concerns have been expressed recently, but we are looking to the organisation to resolve those problems itself. I understand that there might be concerns about cost to industry in responding to requests for information from Ofcom. Let me offer reassurance that Ofcom is prevented by existing statute from making disproportionate demands on industry while gathering the information required to compile a report.
In relation to Amendment 29, I am conscious of the importance of proper consultation where appropriate. I am grateful, therefore, to the noble Lord, Lord Lucas, for tabling his amendment. The commissioning of a report is a neutral government activity which does not require prior consultation. However, in the interests of transparency, which I recognise is at the heart of the noble Lord's amendment, the Government would certainly aim to make the request to Ofcom public. I hope that, in the light of those reassurances, the noble Earl will feel able to withdraw the amendment.
I thank the Minister for that illuminating reply as people were looking for a certain amount of reassurance in this area. I have to admit I still do not understand why the Secretary of State is tying his hands to Ofcom. There may be a more suitable body in the future. We do not know what other bodies there might be even in the next three to five years, so this is not exactly future proofing.
The Minister made an interesting point which I failed to make. He quite correctly spotted that there may be some inappropriateness in domain names. I know Companies House and Nominet are now talking, but they need to align their rules on business names and domain names so you cannot be clever about what you register at Companies House and then use that in order to misrepresent who you are in the domain names system. Closer co-operation in future in that area would be very useful. I know co-operation has started and I hope it will be given a fair wind.
I was also interested by the Minister's comment that this is not linked to the proposals later in the Bill, where I have tabled some amendments, for reserve powers for Nominet to deal with possible problems which might occur in the future with the domain names system. I am glad to hear that they are not linked as I thought that the report might be a precursor to something coming up.
Finally, I hope we are going to be clear about who we are going to be reporting on. Registries can be set up for companies which happen to be in the UK but have nothing to do with UK business. For instance, .tel operates from the UK but is to do with mobile telephony worldwide. It is not a UK business. We have to be very careful that we do not inadvertently do anything inappropriate against companies that do not really have a UK interest. I beg leave to withdraw the amendment.
Amendment 27A withdrawn.
Amendments 28 to 30A not moved.
Clause 2 agreed.
Clause 3 : OFCOM reports on media content
Amendment 31 not moved.
Clause 3 agreed.
Moved by Lord Lucas
32: After Clause 3, insert the following new Clause-
"OFCOM report on retransmission fees and delayed transmission fees
OFCOM must produce a study on retransmission and delayed transmission fees within one year of the day on which this Act is passed."
This is, in effect, a Motion of Regret. These subjects were present in Digital Britain, but there is nothing in the Bill about them. When looking at a system of getting money for copyright holders which is under attack and which I believe will not prove to be totally defensible, we should, at the same time as trying to preserve that system, look at alternative means of getting money for copyright holders. There are well established methods on the continent and elsewhere of doing this. One is retransmission fees, whereby, for example, if the BBC's free-to-air broadcasts were retransmitted by Virgin or Sky a fee would be payable. Another method is fees for reuse or late use. On the continent these are in general collected by a levy on machinery, but we in this country have a licence fee, and we could look at collecting an annual levy in that way.
I do not have any particular conclusions to draw on these methods, but it is a pity that that element of Digital Britain is being neglected and that we are not, at the same time as experimenting with telling the tide not to rise-which Clause 4 and onwards are concerned with-building a boat, which Digital Britain recommended. I beg to move.
I have some difficulty with this, particularly in relation to the BBC and the licence fee, because if I pay a licence fee, at the end of the day I am paying the BBC to make programmes, not to view just on the one occasion that they are broadcast, but at any time in the future-as is the case now. That may not have always been the case-you had to watch a BBC programme once only. I know that the Government's argument against the proposal in the amendment is that, while this is done abroad, there is no licence fee there. The public are already paying a large amount towards the production of programmes which they should be entitled to watch for as long as that programme is available to them. That will now be done not just through Virgin or Sky, but on the internet or BBCi. As regards one part of the amendment, ITV already allows a month in which to watch programmes on the internet, whereas the BBC allows only a week-longer if the programmes are part of a series. I do not know how exactly the noble Lord's proposals will work in terms of each customer. Does it apply to individual customers, as stated in Amendment 288, or will the transmitting company pay?
My Lords, the issue of retransmission fees was looked at in depth by the Digital Britain report, which much of this Bill emanates from. The final report examined the possibility of removing Section 73 of the Copyright, Designs and Patents Act. This would remove the exemption that cable operators currently enjoy from paying a fee for the retransmission of certain wireless broadcasts within a limited geographical area. This is designed to ensure that public service content is spread across as much of the country as possible.
The report concluded that because removing this exemption would generate,
"no additional revenues for the UK television industry", the Government,
"remains unconvinced that the removal of section 73 will generate the necessary future revenues to fund content creation in the UK".
We do not believe that it is necessary to include a specific power to examine this issue so soon after the Government have done so. We also believe that it should be government who examines the issues, not Ofcom. As part of this party's wider policy-formulation process, we will keep the issue under review, but we do not see the need to legislate so to do.
The two amendments deal with the funding of content production through a system of regulated payments for retransmission of free-to-air material. I thank the noble Lord, Lord Lucas, as I confess that I tended to confuse retransmission with repeats, in relation to iPlayer and other such things, so we need to be careful that we are talking about retransmission and not repeats.
The first amendment will require Ofcom to produce a study of retransmission and delayed transmission fees. The second amendment will require Ofcom to set fees for the retransmission of free-to-air broadcast material at the time of the original by, for example, cable television, satellite services or streaming web services. It also tasks Ofcom to set similar fees for delayed retransmission of the same material by catch-up TV services, on-demand viewing services or potentially web TV services.
Retransmission or delayed transmission of broadcast material by means of these services, except cable, should already be subject to copyright licensing and payment through commercial negotiation. These payments are what the noble Lord, Lord Lucas, refers to as retransmission and delayed transmission fees. Cable operators, as the noble Lord, Lord Howard, reminded us, are exempt from paying retransmission fees under Section 73 of the Copyright, Designs and Patents Act 1988. Some have called for this exemption to be repealed, arguing that it would generate incremental money for content creation. The noble Lord, Lord Howard, reminded us that the Government considered that in Digital Britain: Final Report. Following a robust analysis of the available evidence, we remained unconvinced that in practice repealing Section 73 would generate incremental revenues to fund content creation in the UK.
No such exemption exists for satellite, and what is paid by platform operators and ultimately by broadcasters in return to rights owners is largely a matter for commercial negotiation. The current arrangements on satellite transfer no additional value to PSBs because the retransmission fees are offset by the carriage fee. There is no evidence that a similar situation to the one observed on satellite would not arise on cable if the Section 73 exemption were repealed, and therefore such a move would be unlikely to generate additional revenue for the UK content industry. We also believe that, given that there is only one national cable operator in the UK-Virgin Media-the majority of the uses of material covered by Amendment 288 are already subject to commercial negotiations. It does not appear that there is a pressing reason for the heavy hand of government to start setting prices for such licences-or perhaps I should say the potential heavy hand of government.
There is another angle from which to look at this issue. If the concern is not to ensure that copyright owners are paid for their work, as I have just discussed, but rather a concern that the material may not be currently available for licence at a reasonable fee, other considerations must be borne in mind. Enshrined in international treaties is a principle of copyright law that we must consider in debating these amendments. Amendment 288 appears to introduce compulsory licensing. Compulsory licensing where a copyright owner is told that they must license their property to a third party should be avoided unless there are very compelling reasons to consider it. In any event, it may be implemented only if it does not unfairly prejudice the rights of the copyright owner. I am not aware of evidence that there is a failure in the market such that this content is not available on fair terms to those who require it. In the absence of such evidence it would not be right to take away the control that copyright owners rightly enjoy over their property.
The Government are more than aware of the funding challenges faced by high-quality, original UK content. Indeed, we propose alternative measures in this Bill to modernise our public service media content ecology and to deal with the challenges of content creation. Outside the Bill, with the digital test-bed initiative, we are also contributing to the development and the testing of new funding models for content creation, particularly micropayments. We will, of course, keep the question of retransmission fees under review, but we consider that the case has not been made for intervention of the kind proposed by the noble Lord, Lord Lucas, for the reasons I have just mentioned. Furthermore, I do not agree that requiring Ofcom to conduct a one-off study, as proposed by Amendment 32, is a matter that should be enshrined in statute. In the light of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.
I beg leave to withdraw the amendment.
Amendment 32 withdrawn.
Moved by Lord Razzall
33: Before Clause 4, insert the following new Clause-
"Obligations on copyright holders
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."
My Lords, we now come to one of the most controversial parts of this Bill, notwithstanding the length of time that has been taken on Clauses 1 to 3. I am moving Amendment 33 and, looking at the Marshalled List, we get to Amendment 214 before we emerge from the question of what we do about so-called illegal file-sharing.
I am glad this amendment has been taken first, because it focuses on the most serious issue here: how do we balance the interests of the copyright owners who feel that downloading without payment is in reality theft of their asset, against the understandable belief by many users of the internet that all information on the internet is free? That is the balance that your Lordships will try to find over the next 188 amendments and through Clauses 4 to 17.
The particular problem this amendment attempts to deal with is the current position with regard to what is happening on behalf of copyright holders and their firms of solicitors in relation to reports of illegal file-sharing. We have all had letters from people who have been subject to this. One of the letters that many of your Lordships will have received contains the sentence that encapsulates the problem: "nobody should have to endure what we have endured-no warnings, our homes searched and an endless involvement with the court system".
What appears to be happening at the moment is that many firms of solicitors, when they have an allegation of illegal file-sharing, demand large payments from people with the allegation that they will take them to court unless they pay up. People are put in the invidious position of either having to incur huge legal costs to defend their position or to pay the compensation that the firm of solicitors is asking for. There is a technical procedure which is now referred to as the Norwich pharmacal order, under which information can be obtained by the copyright holders with names and addresses of customers who allegedly have been engaging in illegal file-sharing. That has increased the opportunity for firms of solicitors to indulge in the practice that they are understandably using in order to protect the rights of the copyright owners.
This is a very straightforward amendment, which requires anyone who is going to take action under the new regime against subscribers for online copyright infringement to use the process set out in the relevant sections of the Communications Act, except in cases of actual or likely extreme prejudice. This is a graduated response, rather than as now being able to use solicitors as a first step to deal with alleged file-sharing. I beg to move.
My Lords, I am not sure if I should be raising this on this amendment or the next one-Amendment 34. Whatever we do in this Bill must be compliant with EU directives. The new framework directive has just come out as a result of the action by the European Parliament, and amendment 138 became Article 1(3a) of the new framework directive. To take little bits out of it,
"Any of these measures regarding end-users' access to, or use of, services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate".
I know that that is the next stage of the technical measures, but the principle that everything must be as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms is very important. We may be in danger of passing something into law here that could be struck down at the European Court of Justice in the near future if we did not get it right. The directive goes on to state that measures must comply,
"with general principles of Community law, including effective judicial protection and due process".
I thank the noble Lord for clearing that up, in which case, I shall not have to repeat it for the next amendment. I just wanted to make sure that the current amendment was not part of the same issue. I shall finish my remarks and hope that noble Lords remember them for the next amendment, because it is all about due process: about the Government doing it properly and not hitting the citizen when they should not.
My Lords, although we on these Benches cannot agree with the amendment, we not should look to prevent a private person or company pursuing an action through the civil courts if they wish. The noble Lord, Lord Razzall, raises an interesting point about the impact that the provisions might-and, I hope, will-have on the number and form of actions that rights holders take against copyright infringers.
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.
I therefore share the noble Lord's hope that the number of court cases against individuals,especially the number of threatened court cases that he mentioned, will be significantly reduced. However, the reduction should be a natural consequence of the successful implementation of this part, not a result of our having imposed a legislative block on rights holders.
My Lords, I must declare an interest, as my wife has a photographic archive and manages a collecting society. This is of more relevance to later stages of the Bill, but I declare it now for the record.
I agree with my noble friend Lord Howard that we cannot agree with the amendment of the noble Lord, Lord Razzall, although we support his sentiments. The amendment, which proposes a system of two warnings and then a throttle, is in danger of assuming that the rights owner is a corporation with deep pockets. It must not prevent individual creators taking action against unauthorised online use of their work.
My Lords, like the noble Earl, Lord Erroll, I may be in danger of saying something that applies to other amendments as well, but since this is the very beginning of the debate on file-sharing, perhaps I may make my points now and return to them later.
One of the things that I do is go round schools and talk to young children about general business ethics. We talk about all sorts of things that people should and should not do in the business workplace. When we come to summing-up time, I always ask how many of them steal-I do not ask them to raise their hands; I just ask them to talk on the subject of stealing. Of course, they all say that they do not steal. We then come on to illegal file-sharing and downloading of music, movies and so on, which, of course, every single child in this country is doing-you would be hard pressed to find any person under the age of 25 who is not illegally downloading. We should face up to that issue. We will talk today about legislation that will preclude this, and fines and all sorts of people becoming involved. There is a huge danger here. A huge group of our people are doing something that they do not think is wrong or a crime. It is dangerous for us to be putting into effect legislation that puts a whole lot of people in a criminal situation when they do not think that they are committing a crime.
One interesting thing: this is the time when people are voting on the movies that are going to win BAFTA awards and the Oscars in America. I know for a fact that some of the films on which voting has occurred have already been uploaded to the internet and are being downloaded. There is no question that this is a tremendous problem. To young people, the big film and music companies are often seen as the enemy, as bodies which have charged exorbitant prices for their products over time, so there is no sense of guilt about downloading. This is something we should think about in our deliberations this evening.
I agree with what the noble Lord, Lord Mitchell, has just said. We have to be careful about setting out to criminalise, as he says, a large proportion of our population, particularly when it involves putting them not in the hands of the criminal law with all the safeguards, care and rationality that involves, but in the hands of firms of solicitors who are out to make a buck from the process. None of these people are nice to deal with. Even where the majors have been involved in prosecutions-there are not many cases of that-they are relentless. It is not at all nice to be on the receiving end of one of their prosecutions. They can take a long time, cost a great deal of money and go on, with unspecified consequences, for a period of years. It is not like a parking fine or some simple, reasonable but reasonably painful financial consequence of wrong-doing. This is putting people into the civil justice system with civil levels of proof. We should be careful about doing that and the circumstances in which we do it.
ACS Law, one of the firms involved in this, has been kind enough to write to me. Its technique is to send out letters saying that it has evidence that a breach of copyright has been committed and demanding a few hundred pounds in recompense. The difficulty is that the evidence has usually been provided by a company abroad that does not disclose the methods by which it has been obtained. It may well have been obtained against data protection rules-that is certainly the conclusion that the Swiss and French authorities seem to have reached. It is anyway totally impenetrable. You receive one of these things saying that you have done wrong and owe money. How on earth do you disprove it? Without spending a great deal of time and money, you have no means of showing this company that you do not owe them what they say. I think most of their income comes from people who just pay. I am not aware that there have been many court cases at the end of this because of the element of bluff.
This seems a disreputable thing to wish upon our citizens. We should be careful in this Bill that we are not going to multiply what is going on at the moment. If we can, we ought to seek to avoid that. We ought to produce something civilised, aimed-as is much of the first bit of Clauses 4 to 17-at education and persuasion, and where at the end of the day there is due process and reasonableness in the consequences for our citizens.
I have a great deal of sympathy for this amendment. However, it perhaps should not be the right to prosecute that we try to remove, but the right to obtain information about who has been doing wrong; in other words, the right to users' names and addresses. Since that process is so wound up in what the Government are proposing, perhaps we ought to make that exclusive so that in order to obtain it, copyright owners have to go through the processes in the Bill.
It will be difficult to get this balancing act right, and I do not pretend that I have an instant answer to this but, returning to what the noble Lord, Lord Mitchell, said, we should be very careful about what we are doing to our citizens, because these are not nice people to fall foul of. The methods that they use to extract money are not nice, and I do not mean just the fringe operators. That applies to dealing with a difficult-to-refute allegation in the civil justice system. What the noble Lord, Lord Razzall, proposes in the amendment seems to have a pretty good basis.
I support what the noble Lord, Lord Lucas, said, and my noble friend's amendment. I am glad that we are having this debate. What would help me in considering whether we are likely to be able to strike any sort of balance between the rights of the citizen to know exactly how the evidence was obtained and what they are facing is if the Minister could say a little more about how copyright holders will obtain that evidence. What technical methods will they use to get the evidence that people have been file-sharing? I appreciate that it is a fairly technical question but-in order that people can understand whether there is any evidence against them and whether their name is on the list erroneously, and so on-it is reasonable to lay out, at least before this Committee, how copyright holders will get that evidence. What technical method will they use? If the Minister can explain that in layman's terms, it would be very helpful.
Perhaps I may start with an apology. I was unable to attend Second Reading, and I know that it is unconventional for those who have not done so then to speak in Committee. However, I spoke to the House authorities and explained that I was at the draw for the World Cup in South Africa-an event which I celebrate. It was a duty imposed on me.
I thank the noble Lord. If I had any influence on the draw, I would readily accept those congratulations. However, it is true to say that it was a happy draw.
I declare an interest as chairman of the FA, because football rights holders are among the rights holders that are affected. However, this is an opportunity to reflect on the period of approximately eight months when I was Minister with responsibility for intellectual property in the short-lived DIUS, when I was routinely confronted by the debate between those who believed that everything should in a sense be free because technology had made that possible, and those who were unable to generate the economic activity that many of our new and most innovative industries are capable of generating. As was said in the Second Reading debate, which I read, they are a significant and growing part of our economy. That was of great significance when I had that responsibility because it is clear that, broadly speaking, as a nation, we will not make our living digging things out of the ground or beating on metal to any extent. We will make it out of our innovation, our inventiveness and our being at the front edge of what we are capable of achieving. That is why I want to reflect on the comments made by the noble Lords, Lord Mitchell and Lord Lucas.
Many will say that vast numbers of people break this law-I was presented with copious evidence of it-and ask whether it is practical to intervene without unwanted consequences, or say that there will be those in the legal profession and elsewhere who will exploit this law. The temptation when you hear such arguments, with the greatest respect, is to put it all in the box which says "too difficult". There is a cultural propensity to say that these are all big corporations which have made a fortune over the years, so there is something vaguely picaresque about stealing from them now. But the truth is that if we really value the innovative structure that is a great capability of this country's economy, then there need to be proportionate means of trying to deal with this.
First, not everybody who steals a file on their computer is a 16 year-old who wants one song. We found huge evidence that many people not only download material; you can find in car boot sales and market stalls vast quantities of material that has been stolen and downloaded, frequently associated with illegal immigrants taking part in the marketing of it. I say this not to paint a lurid picture but because the coming together of these different kinds of criminal activities should be of significance to us, and also because it is a very significant criminal activity. One of the reasons why trading standards officers and others have been invited to try to make London fake-free by the time the Olympics take place in 2012 is that those who are pursuing this activity with considerable success are not just youngsters but people with a much more serious criminal intent.
In the case of football, people do not always regard the output as intellectual property. None the less, it is a very serious product in a very serious industry which is sold with huge success worldwide, and its economic model is dependent on doing that. I sincerely applaud, for example, the FA Premier League for making one of the great world export products which is one of the huge successes of this country. In the case of my own organisation, the FA, we are a not-for-profit organisation. The money that we make by selling those properties is the money that goes into grass-roots football in every park and small stadium and into the opportunities that we can offer to youngsters to get them into a sport and off the couch and away from the television-and occasionally, one hopes, away from their computers and stealing files.
All of this suggests that the response needs to be genuinely robust. I think that the response in the Bill is genuinely robust and strikes a helpful balance. However, in the final analysis, it would be wholly inappropriate to deny people the opportunity to seek by legal means to prevent people stealing their property. Difficult as it may be for some youngsters to see it as theft, it is interesting-I do not know whether the noble Lord on the Front Bench has had this experience since taking up ministerial responsibility-that when you went to schools and discussed it with rather younger children, they understood it instantly. They understood that if they really wanted to hear that kind of music in the future-music of the indie bands and others who were being driven out of doing what they do in the creative industries in this country-they needed to change what they did. It needs a long-stop, and that long-stop is vital to music, to film, to sport and to very many other sectors. Those are the sectors that are the future of our economy.
My Lords, in following the noble Lord, Lord Triesman, perhaps I may remind your Lordships of the interests I declared during the Second Reading debate. I well recognise, as will everyone here, the perception so eloquently outlined by the noble Lords, Lord Razzall, Lord Mitchell, and others, but perhaps I may say respectfully that while this House may understand it, it should not condone for a moment that perception. Because much of the content on the internet is free, it does not follow that all the content should be free. The theft of an electronic good has an exact moral equivalence with the theft of a physical good. No one in the House would condone the theft of a CD, a DVD or a newspaper from a stall. We simply have to end a perception that is at the heart of the difficulties increasingly faced by the creative industries. This is not a threat of the future, but one of the present and the recent past. There is no major creative industry, either in this country or in other places, that has not been massively and adversely affected by the scale of this theft.
I remind your Lordships that the best evidence we have shows that something like half of all internet activity is tied up with copyright theft. We are not talking about some minor problem, but a massive threat not just to any industry, but to one that is a critical part of our national cultural life and, although people always find it hard to believe, one of massive economic importance. In this city alone the creative industries taken as a whole are bigger than the financial services industry. So copyright theft has enormous economic and cultural implications, and let us not dodge the issue that it matters that large numbers of young people think that such theft is okay. They should not think that, and this legislation offers a proportionate framework for dealing with it.
Questions have been asked about the technology. It is not all that complicated. The only person who is going to be captured by this legislation is someone who freely offers on the internet at an identified moment in time-we know exactly where they are coming from, so to speak-material that it is unlawful to provide. They are not sent to jail the next day, but go through a long, complex and well-considered process, at the end of which the main sanction is that they are cut off from the internet. That is a proportionate response to a massive problem.
Perhaps I may challenge one of the statistics used by the noble Lord. He said that 50 per cent of internet content is made up of unlawful file-sharing. I, too, saw that statistic, which was put out by one of the consumer groups. We are also told that 80 per cent of internet traffic is spam, where people try to sell all sorts of medication to boost your life in older age, phishing and various other things. I find that none of these statistics adds up, so we should be very wary of quoting any of them.
I hope that the phrase I used was "best evidence". The best evidence comes from Sweden. On the day that the internet-using community in Sweden first faced the prospect of similar legislation, if my memory serves me correctly, internet traffic dropped by 50 per cent. The figure is supported by other work, but that is the main piece of evidence of which I am personally aware.
My Lords, perhaps I may say briefly that this is a problem and I accept, even as a Scotsman, that the noble Lord, Lord Triesman, has a point about sports rights. However, looking into the future, you wonder how accurate it will be. I wonder whether Manchester United, with a fan base right around the world, is going to put up with being limited just to the rights sold by the Premier League when it could probably sell its own product for a higher price or get more money from it. But that is another matter.
The fact is that the music industry and the audio side have attempted to deal with the problem in ways that are not legally prescriptive. It has tried to do it by micro payment, which means that you pay only a small sum for the piece of music you want, not for a whole CD, while performers are now beginning to sell their product straight on to the internet to be purchased by youngsters. That may encourage them to go out and buy the CD. Further, I gather that increasingly in the pop music area of the music industry-I am not a great pop fan myself-performers now make their money not from selling records of any sort, but by going out and performing live to the public. So the music industry has realised that the solicitors' letters sent to some people have not been a major deterrent.
It may be that the video industry now has to look at this in the same way and see whether there are other ways in which it can tackle this issue. We can accept that this is a problem and that we may have to look at ways in which we stop it, but surely the industries themselves have got see how they can deal with it.
Those of us who are against much of what is in this part of the Bill are not saying that nothing should be done or that rights holders, whoever they are, do not have rights. What we are saying is that there are better ways of getting people to move on to legal forms of file-sharing than criminalising it up front, at the first end of the process, as-I nearly called him my noble friend-the noble Lord, Lord Lucas, and my noble friend Lord Mitchell were expounding. This is a very difficult and complex problem-even though the actual technology is relatively simple-and 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. I refer to the courts and the behaviour of solicitors. The example referred to by the noble Lord, Lord Lucas, was not at the behest of a starving musician in a garret or even the FA, but on behalf of pornographers, who form the largest element in solicitors' letters in this country and Germany so far.
We accept that there is clearly an issue here. We accept the basis on which the Government are approaching this problem. We accept that we have to resolve it. However, we should not do so by taking a bludgeon first and not giving a legal way out. In the long run, a move across to legal forms of file-sharing will be much more beneficial to those genuine rights holders whose interests my noble friend Lord Triesman and the noble Lord, Lord Birt, are upholding.
I am sorry I have entered into a Second Reading debate. Whereas I spoke at Second Reading, my noble friend Lord Triesman did not, so he has an excuse and I do not, but I thought the contrary point of view on this issue ought really to be expanded on at this point.
My Lords, if the debate on this amendment is not quite a Second Reading debate it comes very close to one, given the range of issues involved, the depth and significance of them and the differing views that have been expressed about the issue with which the Government are confronted and seek to deal with in this Bill.
I will deal with one or two extraneous matters first, and then perhaps I will get on to the main issues. I have not the slightest doubt that the noble Lord, Lord Razzall, is more than satisfied with the debate that he has provoked with his amendment and therefore will not have the slightest hesitation in withdrawing it in due course. So I am not going to address him in terms of the necessity for the amendment to be withdrawn. I am sure he knew when he tabled it that, as has been reflected in this debate, at present we are merely in the foothills of this Bill and the issues we have to address, and Clause 17 rises before us as the Everest which we will need to surmount in due course. We will have had extensive discussions well before that. As has been indicated to the Committee during this debate there are close to a couple of hundred amendments between us and Clause 17. So it is not as though these issues will not receive extensive discussion. The amendment has helped to identify difficulties, challenges and problems and, in asking the noble Lord to withdraw his amendment, I hope to show that the Government, in their wisdom and after full consultation and endless representation, have got the balance right in the Bill.
On most sides there is recognition of the serious problems and of the great difficulties involved in solving them. I shall deal first with the extraneous ones. If the noble Earl, Lord Erroll, will forgive me, I shall address his point at the proper location, which is the next amendment. I have got almost word for word what he said and he will receive my reply when we get to the next amendment, which is where it should be properly addressed.
In introducing the amendment, the noble Lord, Lord Razzall, identified an issue which, in an obvious way, was countermanded almost immediately by the noble Lord, Lord Howard of Rising, who indicated that he took an entirely contrary view. He said that the problem at the present time was that those who needed to get on with the business of suing successfully were having great difficulties; it was essential that they should have the path cleared for them and nothing in the Bill ought to inhibit that. I hear what the noble Lord says; he speaks from the Opposition Front Bench and therefore makes an important point.
However, he will have heard from all sides of the Committee, not least from his own Benches-this was graphically expressed by the noble Lord, Lord Lucas-of the problems faced by ordinary citizens through the depredations of lawyers, acting often on behalf of significant interests, who are conducting themselves in ways which are exploitative of our fellow citizens. We need to erect defences because, as the noble Lord, Lord Lucas, indicated, the issue is not one of a gentle warning note or anything like that; nor is it one in which the lawyers operating in this way expect the issue to go to court action; it is one which is exploitative of people's fears. The demands go out and people respond because they are under a great deal of pressure from those demands; they feel that a court case will put them in great difficulty and therefore concede.
This is not the way in which we want the law to work in circumstances where right holders have interests to be defended. This was identified by my noble friend Lord Triesman. We fully understand why he was not here at Second Reading-he was in a much less interesting location, of course, because the debate on Second Reading here was quite fascinating-but we are glad that he is back today to give us the benefit of his perspective on one significant element of right holders.
I emphasise that the Government are cognisant of all the issues that have been raised. I wish to deal with one other extraneous factor. I do not call it a red herring but my noble friend Lord Mitchell is right when he says that a lot of downloading activity goes on among young people who, if not acting in full innocence, are certainly not setting out to be law breakers and we would not want to criminalise them. As a fair percentage of the people in the age bracket he identified are voters, I am sure that we do not want to be in the business of criminalising them in this year of Grace 2010.
Let me emphasise the fact that the Bill is not about criminalising people. That is not the issue that we are involved in. Peer-to-peer file-sharing is already unlawful. With the Bill, we are simply seeking to enforce an existing civil law more effectively. The behaviour we are tackling is a civil infringement, not a criminal one. I want to dispense with the canard that we are about the criminal law against people, who in many cases identified today, may be acting with some degree of innocence.
I have a quick technical point. I get fed up with hearing that peer-to-peer file-sharing is unlawful. It is file-sharing that is unlawful by whatever technical means. Peer-to-peer just happens to be one of the common technologies used for it. I do not like the fact that in Digital Britainand other places they put "unlawful peer-to-peer file-sharing". It should be peer-to-peer unlawful file-sharing. I think it is a point we should remember because at several points in this Bill we muddle up the two things. Peer-to-peer technology is very useful for various purposes.
I and the House are grateful to the noble Earl, Lord Erroll, for making that point at this stage. The more substantial point I am seeking to deal with is whether we are about criminalisation-we are not. What are we seeking to deal with which causes the noble Earl, Lord Razzall-sorry, the noble Lord, Lord Razzall-concern in the amendment? As he expressed in his opening remarks, consumers and consumer organisations are greatly concerned about the issue of actions by certain law firms, graphically expressed by the noble Lord, Lord Lucas. These firms have acted on behalf of rights holders and obtained, on the basis of evidence of infringement, thousands of names and addresses via court orders. They then sent letters to those identified telling them that they could pay something like £500 for the case to be dropped or face court action. Of course, there was the possibility that the court action might involve much greater amounts indeed. I am aware that several people have claimed that the allegations have no foundation but are nevertheless reluctant to risk defending the action in court. We can all see why people would react in this way.
The idea, as I understand it behind the amendment, is to require rights holders to use the provisions we are making available to them through this legislation rather than resort to measures adopted in the examples we all find have been the subject of abuse. I have already sought to indicate that I have great sympathy with that proposition.
It is not the Government's intention through this legislation to weaken the ability of rights holders to protect their copyright material. I want to reassure the noble Lord, Lord Howard, on that point. This includes their ability to use the existing law to defend themselves against online infringement. We all recognise that there has to be effective action available. The noble Lord, Lord Triesman, identified the issue of rights holders. To give one illustration, James Cameron's film "Avatar" had one of the most successful launches of any film in the history of the cinema, but it has been calculated that there were 300,000 downloads on the day it was released. Both James Cameron and the backers of "Avatar", who are not without resources, may be well able to stand that degree of activity; after all, the film is due to gross several times its production costs, which run into hundreds of millions. But it is indicative of what can go on, and others may be in a position where the whole of their potential profit would be lost in these circumstances. The issue then arises, again expressed by my noble friend Lord Triesman and supported by the noble Lord, Lord Birt, of where our creative industries and creative minds are going to be if they are stripped of the rewards of their enterprise, activity and creativity. That is a serious issue for the British economy; the creative industries play a substantial role in the jobs/welfare economy of our society.
The Government are concerned about this problem, which needs to be addressed. We need to get the balance right, which is why this is merely the first of what are bound to be more detailed debates on more detailed amendments over the next few clauses. We also have to address the issue of principle in the Bill. We have a great deal of time in which to address these matters, so we do not need to put all our eggs into the basket of this amendment.
The initial obligations on internet service providers under the Bill are based in part on making the existing law more effective. Rather than resorting to a scattergun approach, copyright owners will be able to focus their attentions on those who appear to be infringing most. We expect copyright owners to use existing law to obtain their details through a court order and take action against them to defend their rights, and to demonstrate that this is not a risk-free activity. Such action is an essential element of the deterrent effect of the initial obligations.
Because the Bill provides a much more effective way of defending copyright owners' rights, we are confident that most responsible copyright owners will want to work through this process. I accept that this will not prevent those who see this more as a revenue-generating activity from using existing law, but it is of course the opportunity to defend an action if someone is convinced that they have indeed been accused without good cause. Removing the ability of responsible copyright owners to protect themselves would be a gross overreaction. Of course there may be cases-business software, for example-where each infringement could equate to thousands of pounds of products unlawfully obtained, and it is sensible and appropriate for the copyright owners in those circumstances to use the existing system, but the concern behind the amendment is not something that this legislation can properly address. On that basis I sympathise with the rather jaundiced view that the noble Lord, Lord Razzall, takes of the actions of particular firms; we appreciate that point.
I hope I can assure the House that we will investigate further with the Ministry of Justice and others within the Government with an interest to see if there are other ways in which the bullying activity identified by the noble Lord, Lord Lucas, can be addressed. There is no doubt, though, and this debate has reflected all dimensions of the issue, that, first, there are rights that need to be safeguarded, and, secondly, some are in a position where they can appropriately use existing legislation and can pursue the force of law in those terms. However, we certainly have to address the fact which my noble friend Lord Mitchell identified-that great activity goes on at the other end of fraudulent activity. It is innocent activity by people who think that they are doing no wrong. Within that framework, the Bill has a much softer approach on the process by which people who are engaged in activity that is not acceptable and not lawful will be warned and given the opportunity to correct their behaviour. We are not talking about criminal sanctions with regard to such activity at all.
I hope that it will be recognised by the Committee that this has been an extremely useful debate. The noble Baroness, Lady Miller, asked me a particular question. We have put in the Library a document about the Bill, Online Infringement of Copyright: The Details. In it, we have spelled out process in some detail. Copies are available in the Library and I imagine elsewhere too. I will happily send the noble Baroness a copy of that document, because it indicates the careful way in which we are addressing this issue.
We are at the beginning of very substantive debates in which will be able to deal with every nuance of these matters. However, I hope that the noble Lord will feel that he can safely withdraw his amendment at this stage.
My Lords, I apologise to the noble Lord for the use of the word "criminalise". "Civilise", which I suppose would be the equivalent, did not seem quite right in the circumstances. I am sure he knew what I meant.
At the beginning of this part of the Bill, I ought to declare my interests. I earn most of my income outside this House from the sale of copyright material. So, I should naturally be on the side of the companies, but, perhaps instinctively, I am not.
We should not forget that the main companies involved have methods of protecting their copyright that they have chosen not to use, namely digital rights management. It was there in music to begin with and now is not, which is not because they found it difficult to sell music that way. They are asking us to use a different way. It is not as if they are alone in the world without a friend or way of looking after their own interests.
We should be conscious in what we are doing of the proper balance of things, because there are alternatives. We should also not put ourselves in a position where we are encouraging these industries to stay in the market positions that they are in at the moment. The market is changing fast. It is full of new opportunities. Yet these big companies are used to their old comfortable ways and seem to want to stick to them. The noble Lord used the example of films. I listened to people from a major film company the other day. They were surprised that, when they release a film in the States, suddenly copies start appearing here on the internet. The old practice of releasing a film six months ahead in the States and making us wait six months for it will not do. They have to move. They have to change.
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.
My Lords, before the noble Lord sits down, I am sure that we do not have to remind him that there are copyright holders-I am thinking particularly of small-time photographers-who are of very limited means and experience in this kind of practice. They are the ones that need to be protected in this Bill.
My Lords, I well understand the temptation that the Minister succumbed to of joining in what I think is the third Second Reading debate that we have had so far; I look forward to many more. I was particularly glad that he got so carried away that he conferred on me an earldom that is well deserved but which I suspect is above his pay grade to award.
I do not wish to join in the fun, other than to say that it is seriously important to pick up on the comment made by the noble Lord, Lord Mitchell, to which the Minister and the noble Lord, Lord Lucas, referred: that this Bill is not about criminalising individuals, whether they are 12, 20 or 85. No proposal in the Bill involves criminalisation. It is very unfortunate when people suggest this, because it gets the debate off on the wrong foot. Indeed, those of us who followed the process that has ended up with the proposals in Clauses 4 to 17 will be well aware that a lot of the internal debate was about the absolute importance, in trying to get the balance right, of eliminating criminalisation from the Bill.
I will withdraw the amendment in a moment, but one or two issues to which the amendment relates should be focused on. First, the Minister suggested that its purpose-the noble Lord, Lord Howard of Rising, who is now returning to his place, made the same point-was to remove copyright holders' current rights to pursue individuals who download, or who commit what they would regard as copyright theft. That is not the case at all. If noble Lords read the amendment-clearly, few noble Lords who have participated in this debate have done so-they will see that all that is proposed is a graduated response and that the process set out in Sections 124A and 124E of the Communications Act 2003 should be used by a copyright holder who wishes to engage their lawyers to pursue individual infringers. That is all they have to do. While that graduated response is gone through, they have exactly the same rights that they have under existing law.
The amendment in no way attempts to remove from existing copyright holders the rights that they already have to pursue individuals if they choose to do so. This is important because, as the noble Lord, Lord Mitchell, has indicated, thousands and thousands of people out there are illegally downloading material. The whole purpose of Clauses 4 to 17 is to set up a system through which there is a graduated response to get those people to stop before they lose their internet access. A graduated response would deal with the issue raised by the noble Lord, Lord Mitchell, and others: namely, getting the balance right between people who feel that they are entitled to download material and copyright owners who feel that they are being deprived of their royalty income.
In conclusion, the owners of the rights-the companies, the individuals-cannot have it both ways. They have spent an awful lot of time lobbying the Government to bring in the proposals that are now enshrined in the Bill, assuming that it is passed. The whole point is that there should be a graduated response, and education-people should realise that they cannot do this. They cannot, on the one hand, say that they want the huge effort that is being made by the Government, by the ISPs, by their own companies and by Ofcom to get a code that everyone will observe, and, on the other hand, say that they also want exactly the same rights to pursue individuals in the ways that have been criticised. That is the purpose of the amendment. Until I heard this debate, I had not realised how important the amendment was, but I have pleasure withdrawing it. I beg leave to withdraw the amendment.
Amendment 33 withdrawn.
Moved by Lord Clement-Jones
34: Before Clause 4, insert the following new Clause-
"Compliance with fundamental rights
In drafting or amending any code, laying any statutory instrument, or taking any other action under sections 124A to 124L of the Communications Act 2003 or under section 302A of the Copyright, Designs and Patents Act 1988, the Secretary of State must demonstrate before such action is implemented that he has considered whether such action-
(a) is necessary and proportionate to the goal of protecting and enforcing copyright, and
(b) appropriately balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights guaranteed by inter alia the European Convention of Human Rights and the EC Charter of Rights."
My Lords, as the Minister said, the debate that we have just had represented all dimensions, and this amendment follows on from that very neatly. I shall not indulge in a Second Reading speech, as both my noble friends Lord Razzall and Lady Bonham-Carter made our approach to the Bill very clear. Of course we recognise the issues surrounding internet downloads. We recognise that problem and the need to provide better enforcement of copyright to protect creators. If we do not protect copyright, we shall not have a creative economy. However, as the Minister said, we have to get the balance right. This amendment provides a general framework, an umbrella if you like, for getting the balance right.
All sorts of amendments will arise before we have finished with these clauses, but the areas where we want to see changes-I have no doubt that my noble friend Lady Miller agrees with me on this-concern the quality of evidence that is presented, the burden of proof and the necessity of ensuring that sanctions are proportionate, codes are clear, costs are fairly apportioned, thresholds are proportionate, and that the overall scheme of things is not oppressive to those who it is claimed are in breach of copyright.
I am sure that we will discuss these aspects in further Committee sittings. We believe that the language of the new EU telecoms directive is important in these areas. I bow to the superior knowledge of the noble Earl, Lord Erroll, in this regard. Indeed, his speech was largely devoted to the language of the new telecoms directive, which specifies that a balance must be struck between the different interests and rights. That seems utterly apposite to these provisions. We may express a range of different views, but I was struck by the fact that nobody denied that the interests of creators had to be protected. On the other hand, I do not think that anybody in this Chamber believes that we need a draconian, disproportionate way of enforcing those rights. I am sure that many of these aspects will be dealt with by the end of the Committee stage. I believe that we can usefully use this framework in that process. I beg to move.
My Lords, this is an extremely worthwhile amendment. Copyright at its heart is not a right, it is a compromise. Copyright can be described as a tax or as a monopoly. Neither is a desirable thing to my mind. Copyright is merely what we do-the tough, difficult, bad things we do in order to enable the good thing, which is creativity, to flourish. It is inherently, therefore, a balance between the costs we impose on the innocent enjoyment of good things by members of the public in return for making it possible that such good things can be created. So the idea of balance ought to lie at the heart of our consideration of copyright.
In discussing the previous amendment we touched on how we balanced the rights of the individual copyright holder with the rights of the citizen who was faced with a demand which they had no reasonable way of defending. One idea that we did not touch on when discussing the previous amendment-so I cast it before the Minister now as an idea-is that perhaps we should have within this a tariff, a means of establishing the fine which the offender should pay, should they choose to admit their offence. In that way we could establish a reasonable and rational level of cost for the infringer, rather than leaving him at the mercy of the courts and of solicitors who push on the fear factor. As I say, balance should be key to this, so I support this defining amendment as part of the Bill.
I, too, support this amendment or something like it. The Government would be wise to accept at least the principle of this amendment because it would calm some of the fears of the system outlined in the next few clauses, both in relation to the existing system and, more particularly, to the new system proposed in Clauses 4 to 16, where there are issues of proportionality, of due process, and of privacy, all of which would be covered by reference to a check against the Human Rights Act. I therefore hope that the Government can accept something like this amendment.
The Minister has cleverly got round my question of how the evidence is gathered by referring me to the note in the Library. Although it is a very helpful technical note, it would still be useful to have something on the record. This amendment speaks to the particularly important issue of the right to privacy. Checking on other people's internet traffic to see whether file-sharing is taking place is akin to opening somebody's post in envelopes to see whether they have illegally photocopied books, for example. It is very similar. Can the Minister explain a little how that technical process is going to take place, and also how the person accused of that will refute the allegation? I think that this goes to the heart of whether the public will be able to understand how the evidence against them is gathered and how they can refute it.
I know that I pointed this out under the previous amendment but, looking at it and thinking more about what people have said, I think that part of it applies to this amendment as well.
"Access to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons".
It goes on to say that they can only be imposed,
"if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards".
And it finishes up:
"The right to an effective and timely judicial review shall be guaranteed".
If we do not comply with that in the Bill, we will be in breach of our commitments to Europe and the European Convention on Human Rights. The Minister's certificate on the front of the Bill may actually be misleading. I would like to see something like this in the Bill, as I think that it is essential.
It can also be used to cover some of the issues around proportionality in Amendment 33. Was it proportional even to use the civil law in the way that it was used? The noble Lord, Lord Birt, represents that all this creativity will disappear if we do not have this provision. Actually, the Bill protects the back catalogue of six or so large digital rights companies. On the whole, the small people will not be protected by patent law because they cannot afford it. There will be no one on the internet looking for their songs being downloaded and no one interested in pursuing those cases. The small people are already putting their stuff out through other methods. The other day, I looked at Pledge Music, for instance. It is a rather clever idea for people to pledge money for some of the stuff that has been produced. It has been shown that a lot of the people who do this downloading also spend a lot of money on other products associated with it, so the concept that these people are losing all their money because there is downloading going on is not necessarily true.
This is slightly, but not entirely, off the point. I remember back to when the music industry said it was going to be wiped out by the Philips cassette. Exactly the same thing went on. It tried to crack down on people caught with Philips cassette recorders and ban the production of machines with two cassette decks which were clearly for copying cassettes. Did it make any difference? At the end of the day, no. "Avatar" is an interesting example. Has it suffered as a result of the fact that 300,000 copies have been made? Would people have gone to the cinema anyway? Perhaps they will go to watch it in full 3D glory, having sampled it on an inadequate little screen. These things may have benefits.
The proportionality of this is important. I am afraid that that is what we are losing sight of by trying to pretend that the whole creative industry will collapse without protection. We need something that will protect the human rights of the ordinary citizen in a proportionate way. That is in the new framework directive and we need also to put it in the Bill.
My Lords, a great deal has been said on the amendment. However, while acknowledging the statement on the front of the Bill regarding compatibility with the convention rights to which the noble Earl, Lord Erroll, referred, perhaps I may draw the Committee's attention to the internet freedom clause of the soon to be adopted European Union telecoms package, which sets out in relation to illegal file sharing that,
"measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy".
The package states that a,
"fair and impartial procedure shall be guaranteed".
That is fundamental to these proposals achieving widespread support from across the Committee. I therefore hope the Minister can confirm that the Government have received thorough legal advice that their measures are compatible with this and other European law.
My Lords, I am particularly grateful for that intervention from the noble Lord, Lord De Mauley, because it provides me with a opportunity to respond directly to the point raised on this issue by the noble Earl, Lord Erroll, in the previous amendment. I have taken steps to make sure that we are in a position to allay anxieties on this point.
We believe, of course, that the Bill is consistent with the EU framework provisions that the noble Earl mentioned. The proposals in the Bill will ensure that subscribers have an opportunity to be heard, should they feel that they have infringed copyright. They will also have a right of appeal to a first-tier tribunal, which is a judicial body. We certainly do not underestimate the seriousness of imposing technical constraints on a subscriber's internet account and that is why we believe that we have got that balance right throughout the Bill. I wanted to reassure the Committee in those terms as regards compatibility.
I also want to reassure the Committee on the next obvious point, which is that I have a great deal of sympathy with the sentiment behind this amendment and appreciate the fact that noble Lords, such as my noble friend Lord Whitty, enjoined me to accept the principle. I have no difficulty in accepting the principle, but it is the direct implications of the amendment with which I have slightly more difficulty. However, I am grateful to the noble Lord, Lord Clement-Jones, for moving the amendment. He asks that the Secretary of State, when acting under Clauses 4 to 17, should demonstrate that the action is proportionate and necessary to achieving the goal of protecting copyright and that it appropriately balances the interests of copyright owners and the public. That is an important principle which the Government regard as underpinning Clauses 4 to 17.
I agree that any Secretary of State carrying out the actions ascribed to him, or exercising any of the powers given to him by those clauses, should have particular care to ensure that his actions are proportionate and necessary. In our debates over the past hour and a half or so all sides have emphasised that point. It is also essential that in taking any action the Secretary of State should consider the interests of the public as regards due process, privacy, freedom of expression and other human rights. Therefore, of course, all those elements underpin the amendment and the principles that the Government are working to with regard to the legislation. In practical terms, what would be involved in demonstrating that these proper and essential considerations had been made? To put in such a statutory obligation to demonstrate that the Secretary of State has considered these things looks to be a substantive exercise in bureaucracy.
In relation to the more significant Secretary of State actions under Clauses 4 to 16 this may be appropriate. Where the Secretary of State is to make a decision to impose technical measures, for example, or to make a decision on cost-sharing, those actions will have to be done by statutory instrument. In preparing those statutory instruments the department will compile an impact assessment that will look at the costs and benefits of all sorts-not just financial-to all parties. That part relating to the necessary statutory instrument surely meets the intention of the amendment. In addition, this House and another place will have the opportunity to consider those statutory instruments and, as the noble Earl, Lord Erroll, emphasised, the powers will have to be exercised in accordance with the European Convention on Human Rights.
However, there are many less significant actions that the Secretary of State will have to take, such as under the proposed new Section 124G that is just asking Ofcom to carry out research and preparation work, or under proposed new Section 124F which allows the Secretary of State to ask Ofcom to include matters in its progress report. Surely it would be cumbersome to have an impact assessment process applying to a direction of that sort.
Clause 17 aims to give the Government a flexible tool to act in a timely fashion to reduce new sorts of copyright infringement that may emerge in future. We are well aware of the concerns raised by Clause 17 and when we discuss it later we will aim to tackle those concerns head on and find ways to address them. But I suggest that Clause 17 is different in nature from Clauses 4 to 16 and we should consider it separately.
In short, I appreciate why the noble Lord, Lord Clement-Jones, has tabled the amendment-several noble Lords have sympathised with it and I recognise its merits-but I believe that in relation to Clauses 4 to 16 the existing requirements on Ministers to act reasonably and proportionately, as well as our normal statutory instrument processes, are enough to deliver what the noble Lord is looking for in relation to significant Secretary of State actions. If we were to accept the amendment we would add a layer of unnecessary bureaucracy, costs and delays to much less significant actions that are not of sufficient importance to merit that consideration.
The noble Baroness, Lady Miller, asked me a question for the second time, having got what she obviously regarded as a less than satisfactory response in my first effort. She asked how rights holders can find out who is infringing copyright and how they can refute it. They go online and search for copyright material that they own on file-sharing sites. They identify the material and download it, noting time, date and IP address, which is the basis of the system. The initial letters that are sent out-I emphasise this as we had a debate on the question of sanctions on the margins and I have no doubt that we will get to this debate in the fullness of time and deal with it thoroughly-are simply warning letters allowing subscribers to take the necessary action to put them in the right where it can be established that they have been acting wrongly in downloading.
Of course, there are the great sanctions available through processes of law to big operations. The noble Lord, Lord Lucas, also suggests that rather than recourse to law, the conduct of the big organisations ought to change. I bear in mind the significance of his point. However, I emphasise that when dealing with young people who are engaged in a great deal of this activity and do not seek to put themselves on the "wrong" side of what is right and wrong in doing this, the first sanction is modest. I hope that the noble Baroness accepts that point and that the noble Lord, Lord Clement-Jones, will feel able to withdraw his amendment.
My Lords, I thank the Minister for that reply. I thank the noble Lords, Lord Lucas and Lord Whitty, the noble Earl, Lord Erroll, and my noble friend Lady Miller for taking part in the debate and supporting the amendment, and the noble Lord, Lord De Mauley, for his contribution.
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.
The Minister says that he sympathises with the sentiment of the amendment. He accepts the underlying principles and says that the Government are working to those. If they are working to them, I hope that they will be accepting a whole load of amendments coming down the track on precisely some of the areas that I have mentioned. Perhaps those who wrote the Minister's notes have not noticed that increasingly in legislation we see sets of principles specifically set out at the front of Bills. If the Minister does not like the language here, which is that the Secretary of State must demonstrate before any actions are taken that they accord with EU law, certain principles and so on, there are other ways of writing that in legislation, such as by saying that certain principles have to be observed when orders are brought forward and when codes are drawn up. There are other ways of stating that certain principles need to inform the warp and weft of the clauses.
I thought that the Minister went somewhat off piste on Clause 17. I know that there will be a great conflagration on Clause 17, but I shall resist the temptation to talk about it now. If there were ever an example of how the principles that I have been talking about will be transgressed by the Government, it is in proposing Clause 17. We have battles to come in that respect. I do not believe that putting these principles in the Bill would be some unnecessary bureaucracy. The Minister seems to be adopting a Bill drafting pragmatism, but he needs to consider the reassurance of stating in the Bill a certain set of principles by which any order or code is to be drawn up or any procedure is to be adopted. That is vital if he is to create public confidence and that very balance that he himself mentioned. The Minister may not have heard the last of this in terms of the kind of umbrella network or framework of principles that we wish to see in the Bill. In the mean time, I beg leave to withdraw the amendment.
Amendment 34 withdrawn.
Clause 4 : Obligation to notify subscribers of reported infringements
Moved by Lord Clement-Jones
35: Clause 4, page 6, line 5, after "infringement" insert "allegation"
My Lords, these are less important amendments than the previous one, but nevertheless of significance. The purpose of these amendments is to clarify that legislation is in respect of allegations of copyright infringement and that this is not some sort of open and closed issue in terms of copyright evidence. The information obtained by copyright owners, and in a sense laid before ISPs, is allegations of breach of copyright, not infringements in themselves. I think the wording of the Act-we have set out a number of amendments where they are appropriate-should be changed as there needs to be a full understanding that it is only a first step. These are allegations; they are not proof in themselves of copyright infringement.
Amendments 36 and 37, also in this group, are very similar. A wide degree of judgment seems to be available to the copyright owner. In our view, it should be narrowed. Therefore:
"In the reasonable opinion of", seems to us to be a sensible addition to those provisions. I beg to move.
My Lords, as the noble Lord, Lord Clement-Jones, has pointed out, Amendments 35, 47, 48 and 58 seek to clarify that when a copyright infringement report is compiled and sent, that in itself does not constitute evidence of guilt. We agree that such a clarification would be useful, although I believe that new subsection (3) does its best to make it clear that copyright infringement reports describe apparent infringements where there appears to have been an infringement-that is to say, not an actual infringement. I hope the Minister can confirm that this means that a report will clearly only establish that infringement has been alleged and that nothing in these provisions will in any way establish a new and lower threshold of guilt.
I turn to our Amendments 36, 37 and 49 in this group, to which the noble Lords, Lord Razzall and Lord Clement-Jones, have added their names and which move in the same direction as their amendments. These seek to tighten up the evidence base required before a rights holder can send a copyright infringement report to an internet service provider. We are concerned that, by making the evidence simply the "appearance" of a breach of copyright, the bar is being set too low. For this process to work, internet service providers and consumers need to have confidence that when an allegation is made it is not on a spurious basis, but that the rights holder is as reasonably confident as he can be that an infringement has taken place. As the drafting stands, allegations could be made and copyright infringement reports compiled and sent simply on the basis of appearance. I do not believe that this is a sufficient level of evidence for this process to go forward, and I hope to hear from the Minister that the current drafting will indeed not lead to lots of speculative allegations.
This is an example of why we needed the previous amendment, Amendment 34, because it was the noble Lord, Lord De Mauley, who quoted the bit out of the European directive which said that these measures may only be taken with,
"due respect for the principle of the presumption of innocence".
In order to presume the innocence, I suspect we need to put in "allegation", just as has been spoken about. This could be a typical example of where the Bill might become non-compliant if we do not add these amendments.
My Lords, Clause 4 sets out the requirements that must be met to produce a copyright infringement report. These reports are the mechanism by which the copyright owner brings specific apparent infringements of their copyright via a particular IP address-and I stress "apparent"-at a particular point in time to the attention of the relevant internet service provider.
Some of these amendments seek to change the name of these reports from copyright infringement reports to copyright infringement allegation reports. Others propose a change of the wording to require the trigger leading to the creation of a CIR to be that in the "reasonable opinion" of the copyright holder an infringement of their rights has occurred on that internet account, rather than it merely "appearing to them" that an infringement has occurred.
I recognise that the apparent infringements are not tested and proved to court standards. It will not be possible at the time the copyright infringement report is made to be able to declare with legal certainty that an infringement has occurred or that the IP address in the reports was responsible. Given this, clearly it is of the utmost importance that the standards of evidence surrounding the identification of both the infringement and the IP address of the infringing account should be as high as possible. I certainly concur with the points that the noble Lord, Lord Clement-Jones, made in relation to the standard of evidence and not presuming this is an open-and-shut case; and indeed with the point that the noble Lord, Lord De Mauley, made about speculative allegations-in other words, what is important is the standard of proof and evidence.
New subsection (3) in Clause 4 already expressly recognises that the infringement described in a copyright infringement report is, as the noble Lord, Lord De Mauley, reminds us, 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. The CIR will also have to comply with any other requirements imposed by the code to be approved by Ofcom. We provided last week an outline draft code that will help to give the Committee an idea of what the code will cover.
All this will require the copyright owner to have rather more confidence in, and evidence of, the existence of the infringement and the IP address of the infringing account than is implied by the term "allegation" or even the words,
"in the reasonable opinion of".
Copyright owners will not be able to issue such notices on a whim or with insufficient justification. There will be that clear, robust audit trail. Therefore, although I recognise the point that noble Lords are making with these amendments, they are not necessary. We will ensure that any notifications issued under the code make it clear that the copyright infringement report represents only an apparent infringement and that it has not been proved in a court that an infringement has occurred.
Amendment 49 would change the terms in which the copyright owners refer to the alleged infringement but would not have any practical impact on how the copyright infringement report is handled.
I am aware that there are some with an interest in these issues who are very concerned to note that the alleged copyright infringements have not been tested by a court of law, and that therefore we have only the copyright owner's assertion that such an infringement has taken place. The wording in the Bill gives sufficient recognition to this fact and the amendment suggested adds nothing to the substance of the provisions. I understand the concerns about the nature of proof and the question of no presumption of guilt. We believe we have covered that with "apparent" and that we have demonstrated that there has to be a clear and robust audit trail. This is a necessary debate given the importance of these issues.
I hope on the basis of the explanations I have provided that the noble Lord will feel able to consider this and be able to withdraw his amendment accordingly.
My Lords, I thank the Minister for that response, which offered very helpful clarification. We now have the draft outline of the initial obligations code. Particularly helpful were the Minister's statement about the audit trail and his general statement, which is now on the record, that the standards of evidence should be as high as possible. Of particular importance was his saying that it will be made clear in the code that these are allegations. I hope that there will a review of this draft and further drafts to make sure that that is the case. One of the purposes of Committee is to hear from Ministers that procedures are very much in line with assurances that have been given, so that we can be informed when relevant statutory instruments-about which the noble Lord, Lord Davies, and the Minister spoke earlier-are going through and when codes are being approved. It is extremely important that the language that we use about these allegations is reflected in the code.
I notice that the outline code already states:
"The CIL will facilitate targeted civil action by copyright owners against the most serious alleged infringers".
That gives me hope that the way in which infringers will be talked about is in terms of allegations, but it is important that we do not stray over the boundaries and suddenly think that people are "guilty". Otherwise, we will not have due process, which is what the amendments from these Benches are striving for. I beg leave to withdraw the amendment.
Amendment 35 withdrawn.
Amendments 36 and 37 not moved.
Moved by Lord Whitty
38: Clause 4, page 6, line 6, at end insert-
"( ) infringement of the owner's copyright appears to have taken place through peer-to-peer filesharing networks on a subscriber's IP address;"
I shall speak also to the other amendments in this group, most of which are in my name. The amendment is about not the substance or process of what is covered by Clauses 4 to 16 but the scope. On one level, these are probing amendments, because they seek a view from the Government on why they have changed the terminology used in the Bill from that used in the consultation process. However, there is also anxiety behind them.
The original consultation paper on this part of the Bill referred to,
"unlawful peer-to-peer file sharing".
In the impact assessment accompanying the Bill, the same terminology was used. However, the Bill talks about copyright violations. The remedies proposed by the Government, although I do not agree with them in their entirety-as may have become apparent to my noble friend the Minister-are very much geared towards illegal peer-to-peer file-sharing. There are many other forms of copyright violation, some of which may be achieved by electronic means. Therefore, the scope of the clauses seems wider either than the original intention of the Bill or the consultation which led up to it. It would be helpful if the Government explained their change; they may even convince me. However, it takes us into a wider territory of trying to use these measures, which were designed to deal with peer-to-peer file-sharing-that is, from one computer to another-for possibly other, more complicated forms of copyright violation. My noble friend the Minister may say that it is to anticipate changes in technology-we already know that some new forms copyright violation are probably not covered by the original term. However, there are some fairly old forms of copyright violation for which these remedies would seem not to be apparent.
This group of amendments is therefore designed to seek clarity on that and to restore the original terminology relating to illegal peer-to-peer file-sharing. To be helpful to the Government if they accept our argument, we have proposed in Amendment 211 a definition of peer-to-peer file-sharing which they may wish to consider. The change that has been made is a little odd, and a number of people on all sides of the argument have wondered why it has been made. It would be helpful at this stage of the Bill for that to be clarified. I beg to move.
My Lords, my amendments in this group are also just excuses to seek clarity from the Government. The noble Lord, Lord Davies, gave us a few moments ago a pretty good idea of how evidence is obtained in relation to uploading; in other words, where someone has made a file available on a peer-to-peer network. We have not yet heard how it is intended that evidence should be obtained of downloading; that is, where someone who has not made any of their own material available on a peer-to-peer network goes out and finds material that they want on such a network. That is what is alleged to happen in the cases about which the noble Lord, Lord Davies, and I were fulminating earlier. We are talking about people who would not know enough about a computer to join a peer-to-peer network but are alleged to have downloaded copyright material. Those allegations are based on very secretive processes carried out under no known protocol and of uncertain legality. I hope that we are not looking at allowing that kind of evidence to appear as part of this process. I would be grateful for a greater understanding of whether the Government intend to attack people who just download and, if so, how it is intended that robust and understandable evidence is to be obtained.
We are talking entirely about downloading; that is, the act of bringing something down from the internet on to your own computer and then using it. What about streaming? If I watch a film on my computer without downloading it on to the computer, on a stream basis, is that an infringement of copyright? I could listen to the same piece of music on the internet again and again without ever downloading it on to the computer. Is that an infringement of copyright?
My Lords, I presume that it is, but I find it difficult to understand how robust and challengeable evidence that I have done it can be produced without one having access to my computer or reconstructing my internet traffic in some detail, which is an entirely different subject. My understanding of what the noble Lord, Lord Davies, said was that the evidence could be provided in the case of uploading; in other words, where I have made a streaming download available or where I have placed a piece of music on a peer-to-peer network, and someone can go along and download it and, there it is, it has come from my IP address. You would then have an exact match to time and IP address with which it would be pretty difficult to argue-we will doubtless come on to the difficulties of IP address identification later, but it is at least pretty good evidence. However, on downloading, which goes the other way, I am still bemused as to how the Government think that they will get evidence.
My Lords, I entirely agree with what noble Lords have just said. The amendment strikes at the heart of the complications of all this and at why the Bill is probably not going about the issue in the right way. Peer-to-peer technology offloads content from servers and can be very useful for universities which distribute large data sets for examination or for people to run large mathematical models against them et cetera. It can be useful for distributing software updates without overloading one or several central servers from a particular company. There are many uses for it. Equally, when we come to the definition of "computer", do we also include, for instance, personal digital assistants, which are effectively small computers in your pocket, and mobile telephones, which are also effectively computers these days? There are proposals to take the load off radio base station masts, for instance, by using mesh systems which will transmit from telephone to telephone. This would be a form of file-sharing. You would not know you were doing it, but you might be an intermediary in passing this stuff through.
Later, we get to the definition put by the noble Lord, Lord Whitty, which is a good one in many ways, but we must be careful that it does not draw in some desirable technology for having a resilient infrastructure around the country. This is the danger of trying to proscribe it. If we go the other way and do not proscribe it at all, then we get into exactly the problem which has just been mentioned.
On streaming, I am told that already, in anticipation of this Bill, there are streaming servers being set up from which you can download as well as just watch. People will start downloading from specific servers. The only way to find out about this is through something like the Home Office's proposed interception modernisation programme, where you track all the internet traffic of individual subscribers, or deep-packet inspection where you ask the ISPs to look at what is inside these packets. The latter is exactly why the noble Baroness, Lady Miller of Chilthorne Domer, who is about to speak, was so against the former system. Many other people were as well.
This is why we have to be careful in the powers the later clauses give the Secretary of State to suddenly do other things. In a way, this amendment highlights the dangers in this Bill of handing incredible powers to the Secretary of State to stigmatise or interfere with desirable technologies. The Government do not realise the unintended consequences of what they are doing. They are so blinkered; they are looking at one issue only and not the other, desirable effects which get hit by the same thing. This is a useful amendment to illustrate the problem. It would be good to limit it to peer-to-peer but I do not want to see peer-to-peer stigmatised as the thing that is illegal or unlawful. It is not. However, I am worried by the powers that the Secretary of State might take to cause greater problems to other technologies out there which are hugely useful.
I speak to Amendment 40 and Amendment 82 in this group, which explore the effect the Government think the legislation here will have on corporate and communal facilities. As the Bill is drafted, I find it hard to understand what the effect will be, other than negative, on, for example, an internet café. Internet cafés and communal wi-fi, such as that being pioneered by Swindon, are aimed at exactly what I thought the Government were trying to include: digital inclusivity to enable people who cannot afford their own broadband connections to access all the things that those of us with our own connections enjoy, such as entertainment, learning and so on. If we are going to have a digital knowledge-based community and digital economy, we cannot exclude everybody who does not have their own internet connection.
As drafted, this Bill will be extremely discouraging to anyone providing any form of connection like that. As soon as somebody goes on to it and downloads something that they should not it will be the provider of the internet connection who is liable. The Minister may say that they can have contracts with those who sign on with them to say that they will not illegally download, but that illegal download will have happened. That person will have paid their pound, had their half an hour and gone away, and the only sanction that the Bill envisages will be that that internet connection is either throttled or cut off after a certain point.
I worry how that will affect those and other communal networks. The noble Earl, Lord Erroll, also spoke, for example about universities. We could speak equally about corporate networks. How will the sanctions here work in a university situation? Other noble Lords talked about just about everybody under 30 doing this. In a university environment, the connection must be used time and again in a way that would invite all of the sanctions in the Bill. How will the Government ensure that this legislation does not have an extremely chilling effect on the provision of communal networks?
These amendments are intended to restrict the application of Clauses 4 to 16 to copyright infringements that occur via a peer-to-peer network. It is absolutely true that these provisions have been written with peer-to-peer networks in mind. That has been the trouble causing so much damage to the creative industries and is certainly the primary problem we set out to address in this part of the Bill.
When we came to consider whether we should, as these amendments suggest, restrict these provisions to allow them to apply only in the case of infringement via peer-to-peer networks, we found that there seemed to be no good reason to do so. As we all know, and have recognised in these debates, technology moves exceedingly fast and user behaviour on the internet moves even faster. The one risk we are taking with these provisions is that the behaviour we are trying to address will have moved on by the time the provisions take effect and infringers will be doing something else. It is worth while keeping the application of these measures open to be used in the case of any sort of online copyright infringement-I stress "any"-if they can be applicable.
At this point, we have not identified a non-peer-to-peer application that these provisions could be used in relation to. The provisions in Clauses 4 to 16 rely on the issuing of copyright infringement notices which are described in the Bill and would be further constrained by the code, as I have already said. For example, as a minimum we expect that the code would require that the method of detection was via a robust and reputable technology-I try in part to reassure the noble Lord, Lord Lucas-which was open to independent or Ofcom scrutiny. A copy of the copyright material or significant part thereof should also have been captured as part of the detection process. The copyright owner should have verified that he had reason to believe that the usage identified was an infringement. The uploading IP address should have been captured and an exact date and time it was taken.
On uploading, the noble Lord, Lord Lucas, asked a pertinent question: what about downloaders? As a fairly mature silver surfer I confess I have not engaged in these activities, but I am reliably informed that when you try to access these sites, many of them only tell you in the small print that you will be uploading at the same time unless you take measures to stop it, which you can do in some cases. If you want to participate in certain file-sharing sites they do not allow you to do that.
It is for copyright owners to identify infringement and at present there is no reliable, remote way compatible with EU law to identify somebody who is just a downloader. That is where we are technologically at the moment. Many people do not realise when they are downloading that all their files are also open to uploading as well. That is the way they are identified. That is a fact, it is why it goes on and it is why so many of the infringers can be identified.
The noble Baroness, Lady Miller, was perhaps taking a rather extreme view of the effect of the legislation by saying that it was somehow going to depress to a large extent communal use of the internet. That is certainly not our intention and we do not believe that is the case. She asked a relevant question about these sorts of communal networks. We recognise that libraries, other wi-fi operators and open-access providers such as universities serve an important function, not least in helping the less advantaged in getting access online. 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. After all, there are many organisations that take steps to ensure, for instance, that pornographic sites are not, so far as possible, accessible. Bearing in mind that most such providers-libraries are a good example-offer a service to allow e-mail or web browsing, they need to offer significant bandwidth or access to specific sites or technologies. This is not new. For instance, libraries will not allow you to photocopy a complete book. All we are saying is that libraries and similar communal organisations can take measures to prevent widespread infringements and still allow people to enjoy online access.
The consistent theme of the noble Earl, Lord Erroll, is that this is all too complicated and too difficult and that what we are doing will suffer from the law of unintended consequences. We do not believe that to be the case. As other contributors to this debate suggested, we believe that we are taking a balanced and proportionate approach to a real and serious problem. The noble Earl is right that there are plenty of legal uses of peer-to-peer file-sharing, but they are not the ones that we are interested in prohibiting and will not come under these measures. He said that the Secretary of State will stigmatise people. That is not our intention; it is our intention to try to change behaviour and effect a cultural change so that people recognise that creative activity and its copyright support is of real value to society as a whole. If noble Lords look at the nature of the measures we are taking, that is the case.
The noble Earl asked about mobiles. As before, if file-sharing is a problem on an ISP's network, then the obligations will apply to it. However, we recognise that mobile networks face particular challenges, including technical issues and subscriber identification; for example, pay-as-you-go contracts. We anticipate that if the cost to a mobile network is significantly higher, we would, for example, allow a higher flat fee for notifications on a mobile network. I was asked why we have not excluded mobile networks. We agree that file-sharing is not, as yet, a significant problem on mobile networks, but that may not be the case in future. Mobile costs are falling while performance increases, which could mean that file-sharing on mobiles becomes a more realistic concern over time.
I shall use the gap in the Minister's reply to check something with him. He said that a university or internet café could take various steps, but is it the Government's intention that if it has not taken those steps, it will be just as open as an individual is to all the processes and sanctions in the Bill?
We are taking a positive approach. We are saying to people, "Here are some positive steps that you can take. Here are steps that similar organisations have taken". If there was an unwillingness to respond at all, then I think that there would be further consequences. The point that the noble Lord, Lord Clement-Jones, made so eloquently seems to have been ignored. As he pointed out-it may have been the noble Lord, Lord Razzall; I apologise if I have confused the two-we are talking about a graduated response.
Methinks that there is too much modesty there. We are talking about a graduated response. I make a plea that we should not exaggerate the approach we are taking. We have no intention of penalising communal organisations unreasonably. The approach will be to suggest ways in which they can stop these kinds of infringement. Similarly, we will say to individuals, "Look, perhaps your wireless network is not being used by you in this infringement, but it is being used by somebody. Why is it being used by somebody else? It is because you have not adopted the necessary security precautions that are easily available to people using wireless networks".
I have spoken about the speed with which technology moves on. I would say at this point, as I think I said earlier, that we have not identified a non-peer-to-peer application in relation to which these provisions could be used. The provisions in Clauses 4 to 16 rely on the issue of copyright infringement notices. I have identified the point about the role of independent or Ofcom scrutiny.
I cannot think of any form of online copyright infringement that we would not want to prevent. We have currently identified the primary cause as peer-to-peer applications, but if these provisions could be used to combat other forms of online infringement, I cannot see how that could be a bad thing. Indeed, I cannot see how restricting these provisions-which I stress are already restricted to online copyright infringement-to peer-to-peer could do anything other than prevent the possible future beneficial use of the provision should the occasion arise. On the basis of those explanations, I hope the noble Lord will feel able to withdraw the amendment.
I have been listening to the debate with fascination. I have a great deal of sympathy with the noble Baroness, Lady Miller of Chilthorne Domer, because the area of schools, colleges and so on could be quite problematical. However, I have another concern. We are talking about the very important matter of the most deprived groups in society, but what about the charities that could use more modern methods of attracting people into whatever service they provide? Perhaps the Minister can explain how the Bill might encourage the various people involved-the various owners-to join together and perhaps agree that in some areas downloading, which might be regarded as very enticing by those who would come in to use the services, could be made free? Would making exceptions be a way forward? Perhaps there could be incentives for copyright owners to provide this sort of service.
My Lords, I am very content with the answer that the noble Lord has given me on the questions I asked. I think that he explains the limitations succinctly. I have many doubts, though, about what he said in reply to the noble Baroness, Lady Miller. One of the principal things he said was that there is a list of sites that you should not let other people on the network use. Those providing an open wi-fi system often include your local restaurant. They want to bring customers in, so they say, "Come in, bring your kit and you can drop into the wi-fi." In order for people who provide that service to be comfortable under the Bill, first someone has to provide them with the list of sites that they should block. At the back of that there has to be a proper appeal mechanism because, as noble Lords will know, you get on to various people's spam blacklists from time to time. There are appeal mechanisms, and by and large they work, but there has to be a system with a list of sites that you do not expect a public site to make available, because they involve copyright infringement, and an appeal mechanism to go with it. Then you have to have an easy way of getting that list and implementing it on your system. I would be grateful if the noble Lord could write to me and say how far we are in having such technology available. However, even if we have it available, there has to be a defence in the Bill which says, "I have done everything I can in industry best practice. Even though you can see that this is going on, I have done my best."
The problem is greater for somebody who is using an ordinary domestic router and having various people tapping into it. I am not aware that there is any mechanism where you can drop this software into your standard Netgear router, or whatever you have at home, to enable you to block other users of that router on the internet. You have no power to find out what they are doing, no access to their computer, no right to monitor their traffic or even to ask them what they are doing if they are over a certain age.
To pick up the point that the noble Lord made about access to wireless networks, yes, you can say that someone who is using WEP is being delinquent and they should use WPA. However, going beyond that to produce something which is proof against someone who is kitted out with the best of the stuff that you can pick up on the internet is getting extremely professional. I have been through the instructions. It would take me a couple of hours and a good deal of head-scratching to set up the protections at home that I would need to be protected against the most proficient bore driver. It comes back to the question of balance. We have to have some way of making sure that people who are potentially providing a public internet service have done whatever is best practice and is reasonable to make sure that they are not enabling illegal file-sharing; but if someone has done that, they have to have protection under the Bill.
My Lords, it might be useful to write on these complicated issues. We should be wary of saying that these things cannot be achieved. I do not wish to engage in an overly technical debate on this with the noble Lord, Lord Lucas, but I am reliably informed that, in terms of the average home user protecting their wireless network, there are reasonable steps that people can take. When we talk about communal networks, I am also assured that there are steps that can be taken. This is a complex issue and an important one, given the organisations that were identified by the noble Baroness, Lady Miller; and I will try to address the concerns of the noble Baroness, Lady Howe. There are examples of plenty of free information material being available, but that is not the point. It is the copyrighted material that people seek to obtain for free, even though in many cases it is available at reasonable prices. That is one of the problems that we are dealing with. We will write specifically on this question of communal usage and make a copy available in the Library.
I do not want to repeat what I said previously in response to the suggestion of my noble friend Lord Whitty. I just want to take the main point that we have identified peer-to-peer as the main problem; but, as we know, technology moves on. I had a fear that the nemesis that appeared in relation to the contribution of the noble Lord, Lord Howard, would appear-if this is the case, why do we need Clause 17? As my noble friend Lord Davies said, we will scale that Everest when we come to it. I do not know whether that is the right metaphor to use in this case, but I think there are good reasons for it.
I am an optimist. I always travel in hope, so let us hope that, whether it is a height that we have to scale or a pit that we have to avoid, we will achieve it between us.
In the light of the explanation provided, I hope that the noble Lord will consider withdrawing the amendment.
Can I raise one other point, which is not on the key point list? The Minister mentioned that this was to be able to cover all forms of infringement and over all technologies, and I see why he wants to do that. Does this also cover written copyright? There is no distinction in this amendment between music, film and text copyright, so the Bill could be applied to all of that.
Inspiration and information from the Box says yes.
My Lords, I clearly will withdraw the amendment. For the record, I think that I omitted to declare my interest as chair of Consumer Focus in moving the amendment. I am not sure that either I or the organisation is reassured by the noble Lord's arguments.
No doubt we will return to the issue of communal use, so I will not speak on that. On the basic definition, however, it is clear that the original concept and design of these measures were based on peer-to-peer, and that is what was consulted on by all sides. Extending it to any future new technology or changing use of existing technology seems to me slightly dangerous without some brake on it. I accept that technology moves on, but could that not be met simply by having another clause in the Bill which effectively says that by secondary legislation we can extend this to other forms? Otherwise, quite a lot of old forms of copyright violation could be achieved through electronic means, even though historically they were dealt with by physical means. It is not as if the owners of those rights do not already have the right of redress through the courts. With due respect to the noble Lord, Lord Birt, we are not in the situation that the Swedish rights owners were when they did not have access to the courts until the recent case. Their only recourse was to turn it into a criminal offence.
In all forms of copyright violation, the rights holders have the right of redress via the courts. The point about illicit peer-to-peer file-sharing is that that did not appear to be suitable for most instances of this relatively new form of copyright violation. That is why we developed these special measures-which I do not agree with, but nevertheless that is why it happened. To have an open-ended extension to all other forms when there is already one form of redress seems to me quite dangerous.
I had hoped that my noble friend's reply would say that peer-to-peer was too techie for the parliamentary draftsman and therefore he reverted to "old speak" in terms of copyright violation. Unfortunately it was not such a simple explanation; it was a deliberate act of Government to decide to extend this, and that leaves me with a few fears. For the moment, although I may return to the issue-or I may not-and I accept many of his assurances, I think that it is a significant extension of the use of specifically designed remedies for a potentially much wider area. The Committee should rightly be wary of that. I beg leave to withdraw the amendment.
Amendment 38 withdrawn.
Amendments 39 and 40 not moved.
Moved by Lord Clement-Jones
41: Clause 4, page 6, line 8, leave out "by means of the" and insert "while connected to the internet access"
My Lords, what the noble Lord, Lord Whitty, has just uttered in terms of the width of the provisions of this Bill is extremely important in the context of our discussions going forward, particularly on Clause 17, but also more generally with regard to how this impacts on the way service providers operate. I thought that the Minister's response to Amendment 82 tabled by my noble friend Lady Miller was particularly important. In that context, Amendment 41 is a relative minnow when compared with some of the principles involved in communal wi-fi services, internet cafés and so forth. Quite rightly, those issues have been raised and I believe that further amendments are coming down the track.
It may be that this amendment should have been grouped with some of the earlier amendments, but there is a lack of clarity on this, and I was interested to note that the Minister is proposing to write about the liability of those service providers. It is not just the communal internet service providers or internet cafés that are extremely concerned about the wording of the Bill, but also some of the commercial providers. It is also interesting that the Minister started to talk about the kind of steps it is right for those service providers to take in order to prevent their service users infringing copyright and so on. Again, we are back into the realm of proportionality and so on. But some of the wording here is not particularly clear, and this amendment is designed to elucidate the meaning in line 8 on page 6; it actually also applies to line 11.
"by means of the service" suggests that it is the service itself that has allowed the infringement, not the subscriber, while,
"connected to the internet access" is a much more neutral term that does not put responsibility on the internet service provider. It may be-and indeed I thought that the Minister came close to this-that it is deliberate and that the provision is creating that kind of liability. Perhaps there are duties implicit in the wording of the Bill to which the internet service provider must pay heed. If that is the case, there needs to be a general understanding of that so that internet service providers can take steps right at the very beginning. Completely outwith the initial code of obligation and the technical code and so forth, it needs to be very clear just what the internet service provider's duties are, and as I say, this goes wider than purely the communal service provider. It is generally applied to the commercial sector as well. I beg to move.
My Lords, I must confess that I was not sure what the noble Lord is trying to achieve with this amendment. It seems to us that infringing copyright while connected to someone else's internet access is the same as infringing copyright by means of their internet access service. The problem we have with the formulation in the amendment is that it could include an infringement that happens at the same time that a subscriber is connected to their internet service but does not actually use that internet service. I think that the term we use in the Bill is more accurate.
On the other concerns expressed by the noble Lord, I take the point about the obligation on commercial providers to notify subscribers of copyright infringement reports as set out in new Section 124A. This section applies if it appears to a copyright owner that a subscriber to an internet access service has infringed the owner's copyright by means of the service. We do not intend to embrace the internet service provider if that was one of the concerns expressed.
We understand in part, having listened to the noble Lord's contribution, the concern here, but we do not believe that the amendment will do what he says-either elucidate or clarify. I have indicated that we will take away the points of concern in relation to communal providers whether they are commercial or not. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.
My Lords, I thank the Minister for that reply, whether he understood the purpose behind the amendment or not. I shall certainly look at his explanation. In the mean time, I beg leave to withdraw the amendment.
Amendment 41 withdrawn.
Amendment 42 not moved.
Moved by Baroness Miller of Chilthorne Domer
43: Clause 4, page 6, leave out lines 9 to 11
My Lords, the purpose of Amendment 43 is to explore with the Government what sort of defence there would be when a subscriber to an internet access service allows another person to use the service and that other person infringes a copyright. The Minister said helpfully in response to my Amendment 82 that he would write to Members of the Committee setting out a series of things that a communal network might have in its defence, and it would be similarly helpful if the Government were to think about what would be useful to an individual subscriber to an internet service. For example, if you operate an unsecured wi-fi system in your own home, are you less likely to have a defence under this provision than if you have a secured system? That is the sort of guidance to member of the public which would be helpful.
Further than that, if you have an internet connection in your own home which a member of your family or a friend from next door has used, why should you be liable for their copyright infringement? Is it that you should be liable if you knew that they were downloading and you did nothing about it? But why is simply allowing others to use the connection different from, for example, allowing someone to use your car if they were insured to do so, and they were caught speeding? In those circumstances you are asked if you were using the car, to which the response is, "No, it was X who used the car". If X was speeding, X is liable for the fine and the points on their licence. But in this case, as the Bill is written, it is still the person who provides the internet connection who is liable for disconnection, throttling or any of the other sanctions provided, not the person who was actually using the internet connection.
This is a particularly strange approach. There is not even a defence provided for in the Bill for the person who generously allows their internet connection to be used. The upshot of that is that if the provision stays as drafted at the moment-lacking any defence or rationale from the Government about how this might work in practice-people will become much meaner about allowing others to use their internet connection. It would be as regrettable as closing down or chilling communal networks if individuals did not feel able to say, "Yes, sure. Log on and use my computer if you want to". That is the sort of attitude I would have hoped the Government would encourage.
It is important that the Government are clear on what they mean here, and that it is made clear that there would be defences for a subscriber to the internet who has no knowledge that another person using their connection, either because it was lent to them knowingly or unknowingly if someone simply logs into a wi-fi network. There is no reason why that person should be disconnected. I beg to move.
My Lords, my name is on this amendment and I support what the noble Baroness, Lady Miller of Chilthorne Domer, has said. I refer to the deletion of the reference to "allowed". I think what "allowed" means in different circumstances would be subject to different interpretations if it ever went to the courts. Clearly, it does not just include internet cafés, but all the educational and equivalent institutions that we referred to earlier as well. It also relates to the individual family, teenagers and all their friends and it could, with a wider system, involve neighbours who are tapping into it. It is clear that if "allowed" means simply a passive "did not stop", a lot of people become vulnerable. This is where the issue of proportionality comes in. It is not the equivalent of certain other measures where the owner is legitimately the person who suffers. If you are a small business and one of your employees conducted the infringement, if you are a university, college or library and any visitor could have done it, or if you are a family with a lot of visitors, then closing down or even seriously reducing access to broadband and to the internet in general has a disproportionate effect. The issue of proportionality is very much bound up with this clause.
It is important that the Government at least give us some reassurances that the code, the guidance, or the thresholds above which any measures should be taken make it clear what, if anything, the actual subscriber should have done to provide for a prima facie defence against such charges. At the moment, I do not think the contemplation of the code deals with that. I would argue that, particularly in relation to educational and other institutions, some exemption needs to be provided in the Bill. The Minister's colleague has already said that he is going to write to us on communal provision and we will undoubtedly return to the debate on these issues at that point. Therefore I will allow the Government a little time. However, this is a big issue about the practicality of this Bill and the measures under it to which the Government will have to give more satisfactory answers.
My Lords, again this is a critical group of amendments. They deal with one of the most difficult issues regarding the practical application of these proposals. We have touched on the issue already in an earlier group, but I hope this will give us the opportunity to explore the issue of infringements committed not by the subscriber but by a guest or a hacker.
As it currently stands, a copyright owner, as has been pointed out already, can start the initial obligations process if they believe either that a subscriber has used an internet service to infringe their copyright or if a subscriber has allowed someone else to use their internet service to infringe copyright. In both circumstances, the process will be started against the subscriber to the internet service for either infringing copyright themselves or for allowing someone else to do so. It is still not clear what happens if someone uses an internet service without the knowledge or permission of the actual subscriber. It is possible to hijack an internet account, particularly a wi-fi account, as we have already heard, without the subscriber's knowledge. Unfortunately the vast majority of people do not have particularly high security settings, and so, I am informed, this hijacking is relatively easy to do.
I think the police have already taken cases which have been proven in court against people who have illegally taken a wi-fi service from someone else's computer. I know of a case where somebody knew a bloke had an unguarded wi-fi system in his house and so he sat outside in his car and got into the wi-fi service every day. As a result, he was charged with theft, I think.
I thank the noble Lord for his intervention. The point I am trying to make is that the person living in the house can get blamed for what the chap in your example did while sitting in his motor car. It may not be the subscriber who has infringed or even allowed a copyright infringement. The Government need to clarify how they will try to tackle this problem. I can understand the thinking behind targeting the measures at an internet service subscriber but there must be some process of recognition at least that copyright infringement may have taken place using a subscriber's internet account without their knowledge.
Amendment 53 is designed to probe what sort of evidence will be available to indicate whether the infringement was by the subscriber or not. As I understand it, there is no way to tell, so a legitimate subscriber is open to penalties for something that was entirely unrelated to him. Of course, the subscriber has some responsibility not knowingly to allow file-sharing on his account, but there will be many cases where he has no way of knowing or preventing the hijacking of his account, as my noble friend Lord Lucas has pointed out.
There is an example of this which might be of interest to the Bench opposite. There is a railway line on which you can plug in and get an internet connection. At the moment, the ultimate person there is the noble Lord, Lord Adonis, who described himself the other day as the Thin Controller. I would hate this to be another example of the Government not listening to the Opposition when making legislation and ending up with one of their Ministers falling foul. I hope the Minister can clarify the Government's current thinking on this problem as the Bill does not seem to deal with it.
My Lords, I want to make a quick comment. Rather than leaving it till later, this is the moment when I probably should raise the point about who the subscriber is, which is what we are starting to discuss.
Another example is Parliament. I am not sure who signs the parliamentary contract, but presumably it is the subscriber. If, like me, many noble Lords have a home connection which is paid for by Parliament, presumably though they are the end user, they are not the subscriber: the contract is actually between PICT and Demon. As I have discovered when trying to get information as to why my internet is not working, you have to go through the very tortuous procedure of ringing up PICT, which then rings up Demon, which then tries to get hold of BT Wholesale, which says that it is not responsible and will only deal with someone else. It then talks to Openreach- PICT is not allowed to talk to Openreach because it has to go through Demon, which has the contract. It all runs on, and no one takes responsibility for the fault.
If anything can be done in this Bill to put a single responsibility on one single body so that these Chinese walls that we have artificially erected between the different parts of the BT group cannot be used, it might go a long way to getting decent internet access sorted out for people, so that you can actually get wholesale to talk to retail, et cetera.
That is not quite a red herring. The point really is: who is the subscriber? When some noble Lord's child, or maybe not even a child, a friend, downloads music or something like that, or, as we have just heard, downloads some text which was in copyright-though let us leave that out for the moment-in their home, over the connection provided by Parliament, is Parliament going to be prosecuted? Does the whole parliamentary system then get suspended, if sufficient noble Lords do this? It is an interesting thought. We have to be very careful about what on earth the description of subscriber is, and the Government should be looking at that.
Secondly, on the legal definition of "allowed", the noble Lord, Lord Whitty, is right. I would like to hear from the Minister-following advice from his legal advisers-a precise definition of "allowed". We hit this problem in the Computer Misuse Act with the definition of the word "likely" which, we were told authoritatively by the Government's lawyers, meant "more likely than not". That is why it was not written into the Bill. For me and for most people that is not common usage. 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. If we do not accept one of these amendments, or the definition of the noble Lord, Lord Lucas, with authority, I would like by the next stage of the Bill to have a proper legal definition of "allowed".
My Lords, I support the amendment of my noble friend Lady Miller. This has been an important debate because it could have considerable repercussions if we do not get the new clause right. As has been pointed out, there is no reference to the state of knowledge of a subscriber in such circumstances. To treat all subscribers the same as the clause appears to do is extraordinarily disproportionate. I am sure that word will be repeated again and again as we go through the Bill. If the proposed subsection is to remain, there needs to be provision within the clause in regard to the state of knowledge of the subscriber; putting it in the code will not be good enough. Right across most legislation "knowingly" and "having constructive knowledge" are common concepts in legal terminology. A liability which is triggered by a subscriber simply allowing someone to use their service-knowing that they are using it but having no knowledge of the activities engaged in-is well beyond what is acceptable. The general public would not understand it.
The idea that everyone will have to guard jealously the codes to their wi-fi systems at home-we all understand there are security issues with the general public passing by in a car, the example used by the noble Lord, Lord Maxton-is not acceptable. Having to treat your wi-fi system within your own home as some kind of fortress when visitors come is grossly disproportionate. Additional language needs to be inserted in the proposed new subsection before it will even begin to be acceptable.
My Lords, I am grateful to noble Lords who have spoken on these four amendments. The noble Earl, Lord Erroll, asked who is the subscriber and there is obviously one clear definition. I understand entirely the ramifications of his point about the provision of services by Parliament, but it is no part of the Bill to sort out the difficulties that he might have in identifying who is responsible for ensuring that his services are effective. Essentially, the subscriber is the person who receives the service under an agreement between the person and the provider of the service. That is the person we are identifying in the clause and on whom the amendments are concentrated.
Let me be clear about one aspect which has clouded this debate and ought not be introduced again because we have been round the course before. We are not talking about heavy sanctions at this stage but about letters which will be sent out where activity has gone on, perhaps innocently but wrongly. I am being asked to address the matter as though a massive legal sanction is being deployed. We are trying to safeguard copyright. It may be other members of a family who have caused the infringement and, in such circumstances, we will not bring in the full rigour of the law. We will indicate that a transgression has been identified which may have been committed by a fond wife, by a junior member of the family or anyone else within the family. That is why the legislation envisages that the first response will be expressed in very limited terms.
I am not prepared to accept the constant reiterations, through these amendments, that a constable and the heavy hand of the law will arrive at a house with an arrest warrant for a signal charge, with a penalty of at least 25 years hard labour, as a result of the transgression. We are not talking about that and it will not do to translate it into such condign terms every time we get into this area. I understand that noble Lords may think and argue in a libertarian way that a transgression has occurred but no action needs to be taken. However, that is not the view of the Government. I am not too sure that it is the view of any noble Lord except when they are arguing the precious case of their particular amendment. The general view, in principle, is that the legislation seeks to deal with an issue which we need to take seriously. That does not mean that every measure in the Bill has a heavy sanction attached to it.
I emphasise that because at this point we are identifying who is the subscriber. Is any noble Lord maintaining that such a subscriber has no responsibility for the service they take out? Is any noble Lord maintaining that any Tom, Dick or Harry-whether a member of the family, a casual acquaintance or someone who drifts in from the road and is treated with due hospitality-can commit an offence on the computer and no one should pay any regard to the issue? If that were the case, then quite clearly the legislation would fall at the first fence and would not tackle the problem.
That is always a defence in terms of any ongoing sanction. However, they do not need a defence to the first letter because it merely indicates that the practice should cease. That process is reasonable enough, is it not?
My noble friend is being a little disingenuous. We are not talking about simply who receives the letter; the question of the subscriber runs through all the gradations of action. The only person against whom action can be taken under these provisions is the subscriber. The question of the noble Earl, Lord Erroll, applies all the way through. It is no use claiming that this clause relates only to the first letter, which does not matter much, because it applies all the way through.
That is right. It is a defence if the subscriber can identify that the connection has been hijacked in circumstances where they could in no conceivable way be held responsible.
I am not going to attempt from this Dispatch Box to be fertile on the range of defences that might be erected. These amendments have been advanced against a background that members of a family may be guilty-others who have access to a home may cause the difficulty-and I merely indicate that the Bill is graduated to take account of offences of that kind. The challenge has to be laid at someone's door. It cannot be addressed to a possible member of a family in circumstances where the provider can have only one source of information-the person who commissions and buys the service. We must start from that point. Noble Lords will be emphatic that the range of potential offences can go from the most mild inadvertence, almost, by a young person to the most serious form of copyright infringement. The Bill is designed to take account of that. I seek to reject these amendments on the concept that it is not right that the Bill should identify an individual-a location-against whom the first charge can be laid and who takes responsibility for the computer.
I understand the point that the noble Baroness, Lady Miller, has re-emphasised. She brought it up earlier with regard to communal facilities. My noble friend Lord Young indicated that we will write about the provision of communal facilities. We recognise that the point needs a response. In dealing with Amendments 43 and 45 I merely seek to establish that there is bound to be a necessity for someone to be identified if a transgression has potentially occurred, and the identification is bound to address the subscriber. I hope noble Lords will recognise-the noble Lord, Lord Whitty, emphasised it-that we need to be proportional. I am seeking to reply to that. I am seeking to indicate just how balanced the Bill is in that relation.
The noble Lord, Lord Howard of Rising, has a rather different perspective with regard to his amendments. I am shaking in my boots at the thought-as the noble Earl, Lord Erroll, indicated-that if an offence occurs on railway trains, for which my noble friend Lord Adonis has significant responsibility, then it is my noble friend Lord Adonis who committed the offence. I will seek to defend my noble friend providing he is not the direct subscriber involved in this issue; I am sure he never would be.
I am grateful for the amendments that the noble Lord, Lord Howard of Rising, has put forward, but I do not think we can adopt them. There are bound to be occasions when a subscriber's internet service connection is used without their knowledge or consent-where their neighbours use an unprotected wireless hub. I do not think it is wi-fi in quite the way that my noble friend Lord Maxton indicated, but there is the potential for access through an unprotected wireless hub. Clearly it would be a proper defence for the subscriber that such an action had been taken without their knowledge, without their permission and had been-perhaps I will not use the word "hijacked" as I have already been brought to book over that-appropriated by someone.
It is important that people are aware that their connection can be used without their knowledge and permission and that there are simple measures that they can take to make such freeloading more difficult. They risk getting into trouble if they do not take the precautions. If we are going to make this legislation effective we have to increase the defences that individuals have with regard to the use of computers, and increase their awareness that giving casual opportunities to others to access the internet via their machines could render them considerable difficulty.
I appreciate that there may be some who do not object to unlawful file-sharing or their connection being used by whoever wishes to avail themselves of free, but unlawful content. All the illustrations that have been advanced with regard to these amendments today have been of relatively harmless unlawful uses. However, there are those who would use these opportunities for very improper purposes indeed. We are all too well aware of the problems caused by the downloading of child-abuse images in the wider society. The idea therefore that no one is going to be held responsible when an individual avails themselves of an opportunity through access to someone else's computer just will not do. We have to have the ability to protect society against illegal actions via the computer which can be for much darker purposes than have been suggested in the debate.
I want to emphasise the effect of Amendment 53, tabled by the noble Lord, Lord Howard. It would remove that part of the copyright infringement report that presents the evidence on which the report is based. In my view, the information has to be included as it is the basis on which subsequent action is taken. It is not at all clear how, if such information were not part of this, internet providers would be able to associate the report with their subscriber who is using the IP address at the time of the alleged infringement. It is a crucial part of the build-up of the case in significant circumstances.
There is a real problem, as indicated by anxieties in all parts of the House. IP addresses have a dynamic quality-they change every time you log on. Without the information prescribed in the Bill and in this clause, it would not be possible to process the reports. This would mean that the whole system would be inoperable. We need that information. I respect the probings of the noble Lord, Lord Howard of Rising, on the matter. I am all too well aware that he has anxieties about the extensive ramifications of public action. In this area I hope he will recognise that if the information is not available then we would not be able to operate the safeguards on which the legislation is based. I therefore hope that the noble Lord will feel able to withdraw his amendment.
My Lords, the Minister talked about darker purposes. No one quarrels with the concept of the real transgressors, but the whole discussion today has been about trying to protect those who are innocent or unknowing about what is happening and the use that is being made of their communal wi-fi system. The Minister was eloquent about the need to sweep everyone into the net so that the code could then begin to operate and so on, but he was not so eloquent about the defences that will be available to people. Where are they going to be available? Are they set out in the code? Is the householder's or subscriber's state of knowledge going to be set out in the code? Will there be a level of constructive knowledge that will be expected of a subscriber? Where will this be set out? Where will the defences be set out? It is all very well to have this broad sweep, but that is precisely why those who are advocating a narrower scope for this subsection are concerned: the state of knowledge does not seem to be covered in the Bill, and there is speculation about whether it is covered in the code.
My Lords, I understand the important point that the noble Lord makes. The code is important because it introduces flexibility in way that the primary legislation cannot. That is why the primary legislation is bound to be somewhat starker and less sophisticated than the code can be, and addresses itself less to the nuances that the noble Lord has identified. I have indicated, though, that we are fully cognisant of that point. That is why the code will be important in the consideration of the Bill.
I hope, though, that the noble Lord will appreciate that at this point we are not amending a code but dealing with the legislation. He will therefore see why I am reluctant to see changes to the Bill as drafted in circumstances where it has graduated elements. Nevertheless, we have certain principles that are essential if we are to reach the Bill's objectives, and that is why I am against the amendments.
My Lords, the Minister hangs on to the principle that the subscriber must be the one with whom the buck stops. I can see the practicality of that; the question is then how to make that practically liveable-with. Coming back to what the noble Lord, Lord Clement-Jones, has said, we must have some kind of idea what defences will be available to a subscriber.
I would very much like the Minister to say what I tried to get him to say before: that a subscriber who has done what he reasonably ought to have done will not find himself prosecuted under the Bill-in other words, his appeal against his details being given to the copyright holder will be successful if he can show that he has done what he ought to have done. He has, perhaps following the warning notice, taken some action of which he is reasonably capable and therefore, if a further transgression occurs, he has done what he could.
There has to be some kind of defence here, otherwise subscribers are being laid open to the actions of people over whom they have no control. The poor Clerk of the Parliaments is going to be in a great deal of trouble; every evening when I go home, I sit upstairs and zip a movie down on to my machine-my internet is very fast so it takes only a few minutes-and he is going to be liable for it. Presumably we will have some defences put up on the parliamentary network and there will be some accepted means for the Clerk to evade what would otherwise be his liability under the Bill. That is if it is indeed the Clerk; I presume it is, because Clerks seem to control everything in this place. There has to be some protection for the person who is essentially innocent and diligent, because the technology has too many holes in it otherwise.
It may assist the noble Lord to know that if you download from home, you are going straight out on to the internet rather than the parliamentary system, even if you are also getting e-mails over the virtual private network, so what you are downloading at that point cannot be monitored at all. If you are in the House they may be able to do monitor you, but those with home connections could quite easily circumvent that and there is no software that I know of that could prevent it.
In response to the noble Lord, Lord Lucas, I agree with everything he said about what is necessary. Within this framework, of course I am identifying that the subscriber is responsible. 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. The Bill quite properly sets out a different approach for before we reach such a significant stage, in order to take account of exactly the expressions I have had from all sides today about the limited responsibility of a subscriber in so many circumstances where they are not involved in major copyright fraud of this kind.
My Lords, this has been an interesting debate. I thank all noble Lords who have drawn the Minister out to get at least the statement he made in the last 30 seconds. The clause is remarkably sloppily drafted; noble Lords are right that we do not know what is meant by "allowed", nor do we even know what is meant by "subscriber". I am grateful to the noble Earl, Lord Erroll, who induced the Minister into what was for him a record speech, at something over 20 minutes, declining to answer the simple question of which subscriber it would be; Parliament or the individual. I never cease to be an admirer of the noble Lord, Lord Davies of Oldham, because he is able to carry on at length, which enables him to avoid answering a very direct question like that.
The real clue in the Minister's answer, though, came when he started to talk about child abuse. Nothing in the Bill aims to deal with that issue, nor should it want to; we already have perfectly strong laws to deal with it. The only reason why I can imagine he would stray into that territory is to distract us all from the total inadequacy of the definitions in the clause.
I would be grateful if the Minister could come up with a list of the defences. I am grateful to my noble friend Lord Clement-Jones for his suggestion that there should be more that we can draw out from the code. However, it will not be adequate for us to feel that we can rely entirely on the code; there are some fundamentals that need to be defined in the Bill, and the definition of "allowed" is certainly one of them.
The other point that the Minister rested far too heavily on was the claim that we are all making a meal of the fact that there are not heavy sanctions and that this is not a very serious issue; the first letter will simply arrive for the subscriber, and if they are not guilty then they need not worry very much. I was under the impression, though, that by the time they receive that first warning letter, they will already be on a list. For most normal law-abiding citizens, even being on a list of people who have done something that they should not is not a position that they should be in if they have done nothing wrong.
There are a lot of issues there. However, 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. They may only get a letter, and no further action may be taken. However, at that time, they are already, as I have said, on a list.
These are serious issues. It will be quite right to return to them on Report. Anything that the Government can do in the mean time in terms of elucidating exactly what they mean would be helpful. However, further definition is required. In the mean time, I beg leave to withdraw the amendment.
Amendment 43 withdrawn.
Amendments 44 to 49 not moved.
Amendment 50 unallocated.
Amendment 51 not moved.
Moved by Lord Lucas
52: Clause 4, page 6, line 19, at end insert-
"( ) sets out the value of the infringement on the basis described in the initial obligations;"
My Lords, in moving Amendment 52, I shall speak to the other amendments in this group. We come to the question of the threshold: how big a transgression is required before the subscriber can be thrown to the wolves? My objective is twofold. One is to not have the Government pay too much attention to the exact drafting. They are not paying attention to anything at the moment; I will wait a moment.
My first objective is to not have the Government pay attention to the exact drafting of any of these amendments. I am merely trying to flesh things out to see where the logic leads and what sort of provisions we might need. The concept of the threshold is important and we ought to take the opportunity in the Bill to say what we mean by it, rather than just leaving it as something which is mentioned at one point in the Bill and never returned to again.
As has already been pointed out, we will start this operation with millions of our own citizens being active transgressors. So, we are going to have to go through a process of education. Certainly to start with, and I hope to continue with, we are aiming at those who are causing a significant amount of damage. Those who are occasional transgressors are not going to find themselves picked up, because that level of misbehaviour is not doing any great damage to the industry and that level of enforcement would do a great deal of damage to polity. That is the position that I hope the Government are setting out to achieve.
If we are going to have a threshold, we have to define that threshold in terms of something. It seems to me that has to be value. One film, one music track and some large piece of software do not add up to three, if you see what I mean. These things have different values, and the only reasonable way of summing up the damage that has been done to copyright owners is to look at the value. It is perhaps not the most convenient way of doing it, but if the Government have a different way of describing the threshold I would very much like to hear what it is.
The second aspect, which comes through in Amendment 110, is that we should be looking at a proper sequence of events. Once the subscriber has been notified that they are suspected of having infringed, and have had the time to go through an appeal process-if they choose to avail themselves of it-only then should the clock start on the second infringement. The second infringement has to date from after that process in order for it to qualify them for their details being given to the copyright owners. In other words, you cannot do what one of my friends did, which is to travel from Edinburgh to Inverness tripping four speed cameras and lose one's licence on cumulative points. You have to be given notice and go through the process of education before you get onto the process of punishment. Those are the points I am trying to make in these amendments.
I hope to draw out of the Government how they see the process of threshold working; what it will feel like for a subscriber; and how their points will be totted up. Doubtless we will come back to this at another stage. I beg to move.
My Lords, these amendments would require rights holders to provide the value of the alleged infringement in the copyright infringement report. Although sympathising with the thinking behind the amendments of my noble friend Lord Lucas, we believe that the copyright infringement report should focus on proof of a breach in online copyright and proof linking such a breach to a particular person. The actual value of the infringement is of great importance to the copyright owner. As such, any value is bound to be subjective, which makes it inappropriate for the value to be included to be obligatory, but if the Government come up with an alternative, as suggested by the noble Lord, Lord Lucas, we would be interested.
My Lords, I will make a couple of points on this, because it is a very important issue. Are we talking about numbers of infringements? There are many other amendments, coming up later, which talk about the number of infringements as opposed to the value of the infringements.
An awful lot of figures are being thrown around by various interested parties, for example, that X billion pounds are lost per year to the industry. Some of it I doubt, because I do not think that the people would have spent the money on it; some of it is probably real. There are also figures of how many people are involved. It would be useful to gather some of these for statistical purposes so that we can see how big the issue is and if it is really as big as they say.
For instance, one lot of people say that 7 million UK citizens are involved in this unlawful activity. That is a lot of people. It would be very useful to know whether this is the figure before we get heavyweight. If that is the figure and we are going to have an impact on it, these measures will not be able to go to them in one letter. The Minister very often says, "Oh, well, they're just going to get a letter and, of course, they are going to desist at that point". I would be very surprised if they did.
I know several senior government employees-it is probably safer for them if I leave it very general-who have unsecure wireless networks at home. One of them, who I was having a go at because he really ought to know better, said, "Oh, I'm miles out in the country; I'll be perfectly safe". Someone else at the same dinner said very much the same thing. This was a few nights ago when we were discussing this Bill. Do not think that there are a lot of sensible people out there who know what they are going to do or that this is going to happen overnight. You will catch a lot of people.
Let us say that to crack down on this 7 million, you are going to have to send out 1 million, perhaps 2 million, letters. It is quite a lot. Let us say that at the end of this you send a second letter, then a third letter; I do not know where we will get to. This is why the number of the infringements, or the value of the infringements, is so important because, at some point, technical measures will be taken to render that person's internet access useless. Music files are not very big. To prevent the downloading of music your internet access will be unusable. To prevent the downloading of film and large games programmes, you can throttle access to deny that and still allow moderate internet access. Some government websites, like Defra, will still time out on you but some of the others will not.
The whole point about this is that there has to be a proportionate and commensurate gain for the level of harm that we are going to do when we start cutting off, possibly, half a million or a million people's internet access. The rest of the Government are watching and will be worrying about it. I quote from the
"This can deliver benefits both to the firm and the worker, as well as the wider economy, society and the environment".
He is talking about universal super-fast broadband in all areas of the country. He continues:
"Indeed, it will soon be seen as indispensable as electricity, gas or water ... The digital initiative ... can create 1.5 million new skilled jobs ... no one area should be left out ... Thanks, too, to the exceptional work of Martha Lane Fox, our aim within the next five years is to shift the vast majority of large transactional services online. This should help secure even better value for money".
This is saving taxpayers' money and means the efficient delivery of government services, but you must balance that with the fact that it all goes out of the window if you cut off a significant number of people's internet. That will happen perhaps after the third or the sixth letter, or after a certain value of transactions. I thought that I might as well mention it at this early stage because, in all the debates on this, the question of the level of infringement before action is taken needs to be taken seriously. The Minister, in his circumlocutions, is trying to suggest that we are being very heavy-handed about this, but I am afraid there is no point in going on and on about this at length; at the end of the day, he does not fool us. It is very simple; we must balance the money for six large digital rights holders against the value for the UK taxpayer. At some point, that will have to be decided, and this is as good an amendment as any for raising the issue.
My Lords, the purpose of these amendments is to add the value of the infringement to the description in the copyright infringement report. As the noble Lord, Lord Lucas, suggested, the amendment is probing.
On the face of it, the amendment would require something like 79p to be inserted for music-for those who are not familiar with this genre, this is the cost of an iTunes download-which would highlight the small amount that is apparently being forfeited by the copyright owner. While an apparently simple amendment, this would be impractical as things are just not that simple. The infringement that the copyright owner detects and puts into the copyright infringement report is material that has been uploaded and offered for downloading. That material may have been downloaded thousands of times; it is not possible to say for sure. In that case, what value should the copyright owner place on the infringement? It makes little sense to put in a range of anything from 79p to £7,900, but that might be the only accurate way of doing it. Nor is it sensible to use a simple multiplier of 10 for unreleased material, which underlines the practical difficulty of placing a monetary value on the infringement. Someone who places an unreleased blockbuster film or game on a file-sharing website for the world to download could cause huge economic damage. To the extent that it may fall under criminal rather than civil damage, is it sensible to assign that a value of £50?
It is also worth reminding ourselves that copyright does not only allow investment; it also gives the creator control over what happens to their creation. We might wish to have the works of the Beatles available for download, but, since they choose not to license that use, should we assign that work a zero value, as the noble Lord proposes? Since the value system proposed by the noble Lord is not reasonable or practical, it follows that it should not be used for setting a threshold, as this would be an arbitrary figure arrived at through a flawed process for assessing the real cost of the infringement.
It is perhaps worth restating at this point why we are making these provisions. Indeed, it has much to do with the cost of infringement to the creative economy. Noble Lords may be aware of some of the figures used in our impact assessment that was carried out last year: a cost of £290 million to £500 million over 10 years, but with increased revenues over the same period. Some might question the robustness of that analysis, and I do not pretend that firm figures from independent sources are thick on the ground, but it certainly shows the scale of the opportunity.
Furthermore, there is the unquantifiable but serious issue of the corrosive effect of widespread unlawful activity carrying on unchecked. It cannot be healthy for a significant proportion of our population to think that it is acceptable to satisfy their demand for content by ripping off others, including the artists. Protecting their intellectual property is primarily the responsibility of copyright owners themselves, but as a country we need to guard against unlawful behaviour becoming accepted as the norm.
The noble Lord, Lord Lucas, talked about the threshold. We absolutely accept that the concept of a threshold is important, and the Bill allows for it. Our approach to the threshold is that it should be for the code, but I recognise that this is not a sufficient answer. Let me say that we would expect the threshold to be based on the number of CIRs received over a period of time. The details should be left to the code. I accept that we must develop the concept of a threshold. We make allowances for it in the Bill and we will put flesh on to the bones in the code.
I concur with the noble Lord, Lord Howard of Rising, that the subscriber is the focus. He is right in that respect.
What can I say to the noble Earl, Lord Erroll? It does not matter how many times we say that this is a graduated response. It is not a heavyweight response or a crackdown. We are not talking about half a million users being disconnected from the internet. I ask only that we should have a proportionate debate. The measures that we are proposing are reasonable, proportionate and about changing culture and behaviour. It does not help us to have a proportionate debate, if he does not mind my saying so, if we keep exaggerating the figures.
At this stage, how has the Minister arrived at the assessment that we are not facing half a million disconnections? The noble Earl gave a figure of 7 million people doing this, and we might reasonably assume that, despite this legislation, a number will go on doing this. What assessment has the Minister made to come up with a figure, and how many disconnections does he think there will be? Does he have an estimate, before he dismisses the noble Earl's figures so lightly?
I am dismissing the figures not lightly but seriously, because I do not think that they are based on any validated or credible evidence.
There can be no evidence because we are going into unknown territory, but the British Phonographic Industry has told me that the figure is 6.5 million, and the Creative Coalition Campaign gave me the figure of 7 million that I just gave the Committee. Those are presumably well researched figures. The Bill quite clearly states that the objective is get the figure down and that if there is no response from the general public-from these 6.5 million or 7 million people-further action will be taken. There is nothing on which anyone, including the Minister, can base the figures, for the simple reason that it has not been done yet. I do not believe that the public will respond because there are so many holes in this.
I am not reassured by the lack of technical precision in the Bill team's briefing. You do not upload when you file-share peer to peer. The whole point about peer-to-peer file-sharing is that there is no central server on which to upload files. They are downloaded directly from the other person; no uploading is involved. If the Minister's Bill team does not understand even that amount of technology, I have very little faith that it can answer any of the questions asked by the noble Lord, Lord Lucas, either. Neither he nor I believe half the things that the Minister says so airily, including that it is easy to say who is doing what on your personal network at home. If you can show me technically how I can do that and if a program is recommended to me that I can use, I will gladly and happily buy it and publicise it when I next talk to PC Pro and others.
I still contend that that is an extrapolation. We are talking about a graduated response, but there is an assumption that somehow no one will respond positively and that everyone will carry on being a serial transgressor. Of course I cannot predict this, but we are not embarking on a campaign. The noble Earl talks about disconnections, but we do not use the term because it is not in the Bill. We have talked about possible measures to restrict bandwidth and so on. All I am asking is that we do not accept the worst-case scenarios when we have no basis for doing so. We appreciate the seriousness of what we are trying to embark on. We believe that our approach, as other noble Lords have said during this debate, is balanced and proportionate. Therefore, we do not accept the descriptions relating to heavyweight measures, a crackdown or cutting off. Neither do I accept the description of previous responses to the noble Earl as circumlocutions. We have genuinely tried to respond to concerns expressed this evening. We have said that we will write to noble Lords as regards identifying subscribers and about problems with communal provision. These are important issues. We have also said that we will address the question of a threshold, because it is an important issue.
The noble Lord, Lord Lucas, said this was a probing amendment to see whether this concept could fly. We do not think that it can, but nevertheless we will address the question of a threshold. On the basis of that explanation and assurance, I hope that the noble Lord will feel able to withdraw the amendment.
My Lords, to come back to the question of figures, I really do not think the Government can get away with starting this great moral panic about the state of our creative industries and then, when relevant figures are quoted, say that there is no basis for them. There either is a basis for this whole legislation and the worry the Government have or there is not. The figure that has been adduced, other than that relating to 7,000 users, is that the Swedish use of the internet dropped by half when they introduced these provisions. If anything like that is true of this country, we are talking about a very large scale of illegal behaviour.
I entirely agree with the noble Lord that these amendments are not appropriate because I was thinking in terms of downloading. Actually, what we are talking about in terms of enforcement is making material available for uploading. Somebody who signs on to one of these peer-to-peer networks and downloads one tune thereby makes the whole of their library available-1,000, maybe-and along comes some copywriter and his organisation and zips each of those, and then he has 1,000 reports against his name. So it is not the level of activity that we are measuring, it is the number of tunes, or other property, which have been made available on a peer-to-peer network. That makes it very difficult to think of a valid threshold in terms of a number because we are not talking about level of activity, we are just talking about the passive side of it-the making available of copyright material for download. How this whole concept of threshold is addressed will be crucial.
I have acknowledged the importance of this matter but we have not started a moral panic. We have not used what I once described in a previous Bill as a piece of Lucasian hyperbole. Neither do I accept the disparaging and unfortunate remark of the noble Earl, Lord Erroll, when he suggested that the Bill team did not even understand the technical concept. We have a range of very talented civil servants who are more than capable of understanding that when one person is downloading a file from another, by definition the other is uploading it to them. That is precisely how these provisions will work. We know that this is possible because the BPI and other major ISPs successfully trialled this notification approach last winter. So I just make a plea for us not to make those kind of-
I apologise for casting aspersions-I know that I should not have done so-but it would not normally be termed uploading to transmit a file effectively horizontally, where you do not upload it on to a central server. However, I apologise for the aspersions. I was getting slightly frustrated.
My Lords, it is very important that the Government should flesh out their ideas of how threshold will work before the Bill leaves this House so that we can begin to understand how the Government see this being enforced and so that we may have a proper care for and understanding of what we are letting our citizens in for. The whole concept of threshold will be difficult to get right. I should be very grateful if the noble Lord could confirm that we will have more evidence of the Government's thinking and direction, even if we are given nothing final, before the Bill leaves the House so that we can get our heads round that, because 7 million people is an entirely believable number. Whatever process we set out in the Bill must reduce that number by an enormous degree before we let the lawyers for the copyright owners loose on them in a big way.
As I say, being subject to the BPI's lawyers, let alone some of the fringe operators, is an extremely unpleasant business when defending yourself against something which is not an ordinary act. If my neighbour says, "You kicked my dog", that is something which you can comprehend. You did or did not do that and other people might have seen it. But if you are told that something has happened on your network-people use machines, they do not understand how they work-you have no particular concept of how to get at that, how to control it, who might have done it or what might have happened. It is very difficult to defend yourself. You are dealing with potentially very large demands, as the noble Lord said. In America, where the industry has gone after people, it has gone after them for hundreds of thousands of dollars. The noble Lord has said it himself: what is the value of putting a thousand tunes on the net? It could be that a lot of damage has been caused. The industry cannot present any evidence as to how often these things have been downloaded by other people. We could get into the American scenario where people who put 1,000 tunes on the net are being gone after for $1,000 each.
Unless we get a sense of proportion and understanding into this, that what we are trying to do is educate the public and go after the determined and worst offenders, we are in real trouble as regards the consequences that this will have for people by just allowing an industry to delude itself that treating customers in this way is the way forward. So if the Government do not have figures that are better than ours, they must get some and give us an idea of how many people they think will fall foul of this and how we are to ensure that the overall effect of the Bill is effective for the industry and proportionate as far as our citizens are concerned. However, I entirely accept that these amendments will not do. I beg leave to withdraw the amendment.
Amendment 52 withdrawn.
Amendment 53 not moved.
Moved by Lord Razzall
54: Clause 4, page 6, line 20, leave out second "the" and insert "a"
My Lords, this is clearly not the most significant amendment that we are considering this evening. It is a small drafting amendment. Having looked at it, I must say that I think the Minister's officials should think about this. The reason that I move it is that, having in the course of the debate so far been quite rude to BSkyB and its lobbying, this amendment is very close to its heart, so I am happy to support it. On that basis, I assume that the Tory Party will as well.
What connection does that have? Surely, if there was a connection, it would be with the gentlemen opposite, who have been supported by the Sun newspaper for the past X number of years until a short time ago.
If the noble Lord, Lord Razzall, is being all inclusive he can leave the Government out, because we are not going to accept the amendment on rational grounds that have nothing to do with extraneous factors.
Each copyright infringement report will identify a specific infringement of a specific copyright work by a specific IP address at a particular point in time. That IP address at that particular point in time will be expected to apply to a particular subscriber. The copyright owner has no knowledge of who that subscriber is, of course. It seems, therefore, that the definite article, rather than the indefinite, is the appropriate formulation.
"any other requirement of the initial obligations code", is likely to cover. This amendment was drafted before we had any idea what was likely to be in the code. I would be grateful if the Minister could outline what he thinks the other requirements are likely to be. I beg to move.
I am grateful to the noble Baroness for indicating that this is a probing amendment. We do not think the amendment would improve the Bill since, while it attempts to make the contents of a copyright infringement report clearer, it would have the effect of reducing the flexibility afforded by reference to the initial obligations code. We discussed in previous amendments the advantages of elements of flexibility introduced by the code which we would not want the rigidities of primary legislation to control. We all appreciate that primary legislation has great difficulties with a situation prone to change as rapidly as this industry and this technology. I accept the noble Baroness's point that the amendment was drafted before we had made progress with regard to the code. That is the basis for our position and I hope she will feel reassured that it is in that context that I am asking her to withdraw the amendment.
Amendment 55 withdrawn.
Moved by Lord Razzall
56: Clause 4, page 6, line 24, at end insert "; and
( ) 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"
Amendments 56 and 57 touch on quite a fundamental point referred to by the noble Lord, Lord Lucas, at Second Reading about the beginning of this clause. It is quite clear that currently copyright owners, through their solicitors, are in danger of being accused of collecting data not necessarily in compliance with the law in order to pursue their justifiable claims on behalf of copyright owners. In Amendment 56, to get to the point dealt with by Clause 4, there must be,
"a sworn statement by the person making the report that the information collected has been obtained in compliance with all relevant laws".
This will insure that internet service providers are not compelled to act on information that is of questionable legality. This may be a small legal point but in practical terms it is quite a big point, bearing in mind the suggestions that currently people are obtaining information, perhaps contrary to data protection and privacy laws, which they are using against individual users charged with illegal file-sharing.
Amendment 57 makes a similar point and requires a sworn statement that the person making the report actually owns the requisite copyright. It is in line with the amendments tabled by my noble friend Lord Clement-Jones that this should not be just in relation to allegations but in relation to significant and sworn statements, both with regard to compliance with the law and to the effect that the person making the report owns requisite copyright. It is a straightforward amendment which the Government ought to be prepared to accept. I beg to move.
I have a great deal of support for these amendments. It is important that any internet service provider has confidence that, if they are to take action based on the receipt of a copyright infringement report, the evidence that it includes has been obtained legally and that, if they make use of such evidence, they will not be exposed to legal action from any alleged infringer. We have tabled a later amendment dealing with similar issues around mere conduit status. We will deal with this at the appropriate time but it is important to state that Amendment 56 would ensure that internet service providers are not using evidence that is of a dubious legal nature, as pointed out by the noble Lord, Lord Razzall, or that may incriminate them in the future.
Amendment 57 is equally important. First, internet service providers should not be expected to establish if a copyright infringement report has come from the genuine rights holder. Such an expectation would place too much of the burden of this process on internet service providers, who are not equipped to establish who actually holds the copyright. A sworn legal statement asserting ownership would give the internet service provider a level of security that they need to proceed. Secondly, this is an important element in the protection against scams and unscrupulous firms who may make false claims simply to pursue financial gain. The House, as has already been said today, is aware of a number of law firms who are already attempting to contact people threatening to disconnect them unless they pay a fine. It would be a small step for these firms to contact internet service providers with similar false claims. Evidence of ownership of the copyright would help prevent such an abuse of the system from taking place.
At the end of a reasonably testing sitting, it is my great pleasure to indicate that I am broadly in sympathy with the contributions of both noble Lords, Lord Razzall and Lord Howard of Rising. I am not going to accept the amendment but I will indicate why I think the noble Lord, Lord Razzall, will feel quite confident in withdrawing it.
There is no doubt that this is an important issue. It would clearly be extremely undesirable if information for a copyright infringement report was itself gathered unlawfully. However, it is not usual practice to put a requirement in legislation that it should be implemented in accordance with existing legislation. The law of the land applies and it goes without saying that it must be complied with in exercising the rights and fulfilling the obligations provided for in this Bill. The code of practice will set out in detail the conditions that a copyright infringement report must comply with. Ofcom and the Secretary of State will have to approve that code of practice and neither could do so if it permitted copyright owners or ISPs to breach laws relating to data protection, privacy or anything else. I do not, therefore, think that the first amendment is necessary.
In respect of Amendment 57, where the noble Lord is seeking a sworn statement that the person making the report owns the copyright being infringed, the Bill would mean that a copyright infringement report must comply with code requirements. Clause 8 makes clear that this must include requirements as to the means of obtaining evidence of copyright infringement for the CIR and the standard of evidence that must be included. A copyright infringement notice will only be valid if it is issued by the true owner of the copyright or someone authorised to act on his behalf. I am going this far: we will require a sworn statement of ownership of the relevant copyright. I apologise-when the noble Lord is suggesting that there should be a sworn statement, I think that that is otiose and an unnecessary additional cost factor. We expect that for a copyright infringement notice to meet the requirements of the code, the copyright owner would, indeed, have to sign a statement confirming that they had compiled the CIR, in compliance with the code, and that they were the owner of the copyright concerned. Therefore, there will be an attestation-an assertion and a clear written position-where the ownership is identified. I think that that will meet the point and, therefore, renders Amendment 57 otiose. However, I am grateful to the noble Lord for raising two important issues.
Perhaps I may pick up the noble Lord on Amendment 56. I would have more confidence in his reply if it were not the case that the details of tens of thousands of internet subscribers have already been passed to copyright owners on the basis of entirely black-box evidence. No one knows what system is being used to recover the information that forms the basis of the allegations that internet subscribers have downloaded stuff illegally. As the noble Lord said earlier, no known system can do this without breaching laws. It appears that this is already happening. Why, then, should we not guard against it happening in the future?
That is the whole purpose of the Bill-to actually guard against it and to identify to people the dangers involved in not complying with the law. The noble Lord will recognise that I identified in my response that the code of practice, backed by Ofcom and the Secretary of State's approval of it, will ensure that the way in which the CIRs are compiled are in accordance with the law.
I thank the Minister for his response. Having heard the noble Lord, Lord Lucas, I wonder whether the Minister's promise to me is rather the same as his earlier promise to me of an earldom. However, I will, of course, look in Hansard at what he said. In the mean time, I beg leave to withdraw the amendment.
Amendment 56 withdrawn.
Amendments 57 and 58 not moved.
My Lords, in view of the hour and the number of Members who have indicated that they wish to speak on the next item of business, the usual channels have agreed that it may be for the convenience of the House if we do not resume proceedings on the Bill this evening. The intention is, therefore, to adjourn the House after proceedings on the Motion of the noble Lord, Lord Roper, have been completed. I hope your Lordships will agree that this is a sensible way forward in the circumstances.