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Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]


Digital Economy Bill [HL]

1

 

[NOTE: The words marked in bold type were inserted by the Lords to avoid

questions of privilege.]

A

Bill

To

Make provision about the functions of the Office of Communications; to make

provision about the online infringement of copyright, about licensing of

copyright and performers’ rights and about penalties for infringement; to

make provision about internet domain registries; to make provision about the

functions of the Channel Four Television Corporation; to make provision

about the regulation of television and radio services; to make provision about

the regulation of the use of the electromagnetic spectrum; to amend the Video

Recordings Act 1984; to make provision about public lending right in relation

to electronic publications; and for connected purposes. 

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

General duties of OFCOM

1       

General duties of OFCOM

(1)   

Section 3 of the Communications Act 2003 (general duties of OFCOM) is

amended as follows.

(2)   

After subsection (1) insert—

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“(1A)   

In performing their duties under subsection (1), OFCOM must have

particular regard, in all cases, to the need—

(a)   

to promote investment in electronic communications networks,

where appropriate;

(b)   

to promote investment in public service media content, where

10

appropriate; and

(c)   

for the investment to be efficient (taking account of the interests

of citizens and the interests of consumers in relevant markets).”

(3)   

In subsection (2)(c) and (d), for “television and radio services” substitute

“media services”.

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Bill 89                                                                                                 

54/5

 
 

Digital Economy Bill [HL]

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(4)   

In subsection (4)(m), for “the furthering or securing of the matters mentioned

in subsections (1) and (2)” substitute “the furthering, promoting or securing of

the matters mentioned in subsections (1), (1A) and (2)”.

(5)   

In subsection (14), after the definition of “general duties” insert—

““media services” means any of the following services that are

5

available to members of the public in all or part of the United

Kingdom—

(a)   

television and radio services;

(b)   

on-demand programme services; and

(c)   

other services provided by means of the internet where

10

there is a person who exercises editorial control over the

material included in the service;

“public service media content” means material, other than

advertisements, which is included in media services and which

OFCOM consider contributes or may contribute towards the

15

fulfilment of the public service objectives (as defined in section

264A);”.

(6)   

After that subsection insert—

“(15)   

The services that are to be taken for the purposes of this section to be

available to members of the public include any service which—

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(a)   

is available for reception by members of the public (within the

meaning of section 361); or

(b)   

is available for use by members of the public (within the

meaning of section 368R(4)).”

2       

OFCOM reports on infrastructure, internet domain names etc

25

(1)   

In Chapter 1 of Part 2 of the Communications Act 2003 (electronic

communications networks and services), after section 134 insert—

“Reports on infrastructure etc

134A    

OFCOM reports on infrastructure etc

(1)   

OFCOM must prepare reports in accordance with subsections (2) and

30

(3) and each report must deal with—

(a)   

the electronic communications networks matters listed in

section 134B(1), and

(b)   

the electronic communications services matters listed in section

134B(2).

35

(2)   

The first report must—

(a)   

relate to the position on a day specified in the report which falls

within the period of 12 months beginning with the day on

which this section comes into force, and

(b)   

be sent to the Secretary of State by OFCOM not more than 2

40

months after the specified day.

(3)   

A further report must—

(a)   

be prepared for each relevant period, and

(b)   

be sent to the Secretary of State by OFCOM as soon as

practicable after the end of the relevant period.

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Digital Economy Bill [HL]

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(4)   

“Relevant period” means—

(a)   

the period of 3 years beginning with the day specified in the first

report, and

(b)   

each subsequent period of 3 years beginning with the end of the

previous period.

5

(5)   

Where there is a significant change in connection with a matter listed in

section 134B(1) or (2) and OFCOM consider that the change should be

brought to the attention of the Secretary of State, OFCOM must—

(a)   

prepare a report on the change, and

(b)   

send it to the Secretary of State as soon as practicable.

10

(6)   

For the purposes of subsection (5), a change is significant if OFCOM

consider that it has, or is likely to have, a significant adverse impact

on—

(a)   

persons carrying on business in the United Kingdom or a part

of the United Kingdom, or

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(b)   

the general public in the United Kingdom or a part of the United

Kingdom.

(7)   

OFCOM must publish every report under this section—

(a)   

as soon as practicable after they send it to the Secretary of State,

and

20

(b)   

in such manner as they consider appropriate for bringing it to

the attention of persons who, in their opinion, are likely to have

an interest in it.

(8)   

OFCOM may exclude information from a report when it is published

under subsection (7) if they consider that it is information that they

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could refuse to disclose in response to a request under the Freedom of

Information Act 2000.

134B    

Networks and services matters

(1)   

For the purposes of section 134A, the electronic communications

networks matters are—

30

(a)   

the different types of electronic communications network

provided in the United Kingdom (“UK networks”),

(b)   

the geographic coverage of the different UK networks,

(c)   

the proportion of the population covered by the different UK

networks,

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(d)   

the extent to which UK networks share infrastructure,

(e)   

the capacity of the different UK networks,

(f)   

the extent to which the providers of the different UK networks

allow other communications providers to use their networks to

provide services,

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(g)   

the amount of time for which the different UK networks are and

are not available, including the steps that have been or are to be

taken to maintain or improve the level of availability,

(h)   

the preparations made by providers of UK networks for

responding to an emergency, including preparations for

45

restoring normal operation of UK networks disrupted by the

emergency, and

 
 

Digital Economy Bill [HL]

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(i)   

the standard of the different UK networks in comparison with

electronic communications networks provided in a range of

other countries, having regard, in particular, to their coverage

and capacity.

(2)   

For the purposes of section 134A, the electronic communications

5

services matters are—

(a)   

the use of the electromagnetic spectrum for wireless telegraphy

in the United Kingdom,

(b)   

the different types of electronic communications service

provided in the United Kingdom (“UK services”),

10

(c)   

the geographic coverage of the different UK services,

(d)   

the proportion of the population covered by the different UK

services,

(e)   

the amount of time for which the different UK services are and

are not available, including the steps that have been or are to be

15

taken to maintain or improve the level of availability,

(f)   

the preparations made by providers of UK services for

responding to an emergency, including preparations for

restoring normal operation of UK services disrupted by the

emergency, and

20

(g)   

the standard of the different UK services in comparison with

electronic communications services provided in a range of other

countries.

(3)   

The preparations referred to in subsections (1)(h) and (2)(f) include—

(a)   

the steps taken to assess the risks of different types of

25

emergency occurring,

(b)   

the steps taken to reduce or remove those risks, and

(c)   

the testing of proposed responses to different types of

emergency.

(4)   

In a report under section 134A, OFCOM are required to include only

30

information about, and analysis of, such networks, services and

providers as they consider appropriate.

(5)   

In this section “emergency” means an event or situation that seriously

disrupts a UK network or UK service.

Reports on internet domain names

35

134C    

OFCOM reports on internet domain names

(1)   

OFCOM must, if requested to do so by the Secretary of State—

(a)   

prepare a report on matters specified by the Secretary of State

relating to internet domain names, and

(b)   

send the report to the Secretary of State as soon as practicable.

40

(2)   

The specified matters may, in particular, include matters relating to—

(a)   

the allocation and registration of internet domain names, and

(b)   

the misuse of internet domain names.

(3)   

OFCOM must publish every report under this section—

(a)   

as soon as practicable after they send it to the Secretary of State,

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and

 
 

Digital Economy Bill [HL]

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(b)   

in such manner as they consider appropriate for bringing it to

the attention of persons who, in their opinion, are likely to have

an interest in it.

(4)   

OFCOM may exclude information from a report when it is published

under subsection (3) if they consider that it is information that they

5

could refuse to disclose in response to a request under the Freedom of

Information Act 2000.”

(2)   

In section 135(3) of that Act (information required for purposes of Chapter 1

functions), after paragraph (ib) insert—

“(ic)   

preparing a report under section 134A;

10

(id)   

preparing a report under section 134C;”.

3       

OFCOM reports on media content

After section 264 of the Communications Act 2003 insert—

“264A   

OFCOM reports: wider review and reporting obligations

(1)   

When carrying out a review under section 264 for a period, OFCOM

15

must also carry out a review of the extent to which material included in

media services during that period (taken together over the period as a

whole) contributed towards the fulfilment of the public service

objectives.

(2)   

Every report under section 264 must—

20

(a)   

include a report on the matters found on the review under this

section,

(b)   

specify, and comment on, whatever changes appear to OFCOM

to have occurred, during the period to which the report relates,

in the extent to which the public service objectives have been

25

fulfilled,

(c)   

specify, and comment on, whatever changes appear to OFCOM

to have occurred, during that period, in the manner in which

those objectives are fulfilled, and

(d)   

set out OFCOM’s conclusions on the current state of material

30

included in media services.

(3)   

“The public service objectives” are the objectives set out in paragraphs

(b) to (j) of section 264(6) (as modified by subsection (4)).

(4)   

Paragraphs (b) to (j) of section 264(6) have effect for the purposes of

subsection (3) as if—

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(a)   

references to the relevant television services were to media

services, and

(b)   

references to programmes were to material included in such

services.

(5)   

In this section—

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“material” does not include advertisements;

“media services” means any of the following services that are

available to members of the public in all or part of the United

Kingdom—

(a)   

television and radio services,

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(b)   

on-demand programme services, and

 
 

Digital Economy Bill [HL]

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(c)   

other services provided by means of the internet where

there is a person who exercises editorial control over the

material included in the service.

(6)   

The services that are to be taken for the purposes of this section to be

available to members of the public include any service which—

5

(a)   

is available for reception by members of the public (within the

meaning of section 361); or

(b)   

is available for use by members of the public (within the

meaning of section 368R(4)).”

Online infringement of copyright

10

4       

Obligation to notify subscribers of reported infringements

After section 124 of the Communications Act 2003 insert—

“Online infringement of copyright: obligations of internet service providers

124A    

 Obligation to notify subscribers of copyright infringement reports

(1)   

This section applies if it appears to a copyright owner that—

15

(a)   

a subscriber to an internet access service has infringed the

owner’s copyright by means of the service; or

(b)   

a subscriber to an internet access service has allowed another

person to use the service, and that other person has infringed

the owner’s copyright by means of the service.

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(2)   

The owner may make a copyright infringement report to the internet

service provider who provided the internet access service if a code in

force under section 124C or 124D (an “initial obligations code”) allows

the owner to do so.

(3)   

A “copyright infringement report” is a report that—

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(a)   

states that there appears to have been an infringement of the

owner’s copyright;

(b)   

includes a description of the apparent infringement;

(c)   

includes evidence of the apparent infringement that shows the

subscriber’s IP address and the time at which the evidence was

30

gathered;

(d)   

is sent to the internet service provider within the period of 1

month beginning with the day on which the evidence was

gathered; and

(e)   

complies with any other requirement of the initial obligations

35

code.

(4)   

An internet service provider who receives a copyright infringement

report must notify the subscriber of the report if the initial obligations

code requires the provider to do so.

(5)   

A notification under subsection (4) must be sent to the subscriber

40

within the period of 1 month beginning with the day on which the

provider receives the report.

(6)   

A notification under subsection (4) must include—

 
 

Digital Economy Bill [HL]

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(a)   

a statement that the notification is sent under this section in

response to a copyright infringement report;

(b)   

the name of the copyright owner who made the report;

(c)   

a description of the apparent infringement;

(d)   

evidence of the apparent infringement that shows the

5

subscriber’s IP address and the time at which the evidence was

gathered;

(e)   

information about subscriber appeals and the grounds on

which they may be made;

(f)   

information about copyright and its purpose;

10

(g)   

advice, or information enabling the subscriber to obtain advice,

about how to obtain lawful access to copyright works;

(h)   

advice, or information enabling the subscriber to obtain advice,

about steps that a subscriber can take to protect an internet

access service from unauthorised use; and

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(i)   

anything else that the initial obligations code requires the

notification to include.

(7)   

For the purposes of subsection (6)(h) the internet service provider must

take into account the suitability of different protection for subscribers

in different circumstances.

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(8)   

The things that may be required under subsection (6)(i), whether in

general or in a particular case, include in particular—

(a)   

a statement that information about the apparent infringement

may be kept by the internet service provider;

(b)   

a statement that the copyright owner may require the provider

25

to disclose which copyright infringement reports made by the

owner to the provider relate to the subscriber;

(c)   

a statement that, following such a disclosure, the copyright

owner may apply to a court to learn the subscriber’s identity

and may bring proceedings against the subscriber for copyright

30

infringement; and

(d)   

where the requirement for the provider to send the notification

arises partly because of a report that has already been the

subject of a notification under subsection (4), a statement that

the number of copyright infringement reports relating to the

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subscriber may be taken into account for the purposes of any

technical measures.

(9)   

In this section “notify”, in relation to a subscriber, means send a

notification to the electronic or postal address held by the internet

service provider for the subscriber (and sections 394 to 396 do not

40

apply).”

5       

Obligation to provide infringement lists to copyright owners

After section 124A of the Communications Act 2003 insert—

“124B   

 Obligation to provide copyright infringement lists to copyright

owners

45

(1)   

An internet service provider must provide a copyright owner with a

copyright infringement list for a period if—

 
 

 
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