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House of Commons
Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]


Digital Economy Bill [HL]

14

 

10      

Obligations to limit internet access: assessment and preparation

After section 124F of the Communications Act 2003 insert—

“124G   

 Obligations to limit internet access: assessment and preparation

(1)   

The Secretary of State may direct OFCOM to—

(a)   

assess whether one or more technical obligations should be

5

imposed on internet service providers;

(b)   

take steps to prepare for the obligations;

(c)   

provide a report on the assessment or steps to the Secretary of

State.

(2)   

A “technical obligation”, in relation to an internet service provider, is an

10

obligation for the provider to take a technical measure against some or

all relevant subscribers to its service for the purpose of preventing or

reducing infringement of copyright by means of the internet.

(3)   

A “technical measure” is a measure that—

(a)   

limits the speed or other capacity of the service provided to a

15

subscriber;

(b)   

prevents a subscriber from using the service to gain access to

particular material, or limits such use;

(c)   

suspends the service provided to a subscriber; or

(d)   

limits the service provided to a subscriber in another way.

20

(4)   

A subscriber to an internet access service is “relevant” if the subscriber

is a relevant subscriber, within the meaning of section 124B(3), in

relation to the provider of the service and one or more copyright

owners.

(5)   

The assessment and steps that the Secretary of State may direct

25

OFCOM to carry out or take under subsection (1) include, in

particular—

(a)   

consultation of copyright owners, internet service providers,

subscribers or any other person;

(b)   

an assessment of the likely efficacy of a technical measure in

30

relation to a particular type of internet access service; and

(c)   

steps to prepare a proposed technical obligations code.

(6)   

Internet service providers and copyright owners must give OFCOM

any assistance that OFCOM reasonably require for the purposes of

complying with any direction under this section.

35

(7)   

The Secretary of State must lay before Parliament any direction under

this section.

(8)   

OFCOM must publish every report under this section—

(a)   

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

and

40

(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.

(9)   

OFCOM may exclude information from a report when it is published

under subsection (8) if they consider that it is information that they

45

 
 

Digital Economy Bill [HL]

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

Information Act 2000.”

11      

Obligations to limit internet access

After section 124G of the Communications Act 2003 insert—

“124H   

 Obligations to limit internet access

5

(1)   

The Secretary of State may by order impose a technical obligation on

internet service providers if—

(a)   

OFCOM have assessed whether one or more technical

obligations should be imposed on internet service providers;

and

10

(b)   

taking into account that assessment, reports prepared by

OFCOM under section 124F, and any other matter that appears

to the Secretary of State to be relevant, the Secretary of State

considers it appropriate to make the order.

(2)   

No order may be made under this section within the period of 12

15

months beginning with the first day on which there is an initial

obligations code in force.

(3)   

An order under this section must specify the date from which the

technical obligation is to have effect, or provide for it to be specified.

(4)   

The order may also specify—

20

(a)   

the criteria for taking the technical measure concerned against a

subscriber;

(b)   

the steps to be taken as part of the measure and when they are

to be taken.

(5)   

No order is to be made under this section unless a draft of the order has

25

been laid before Parliament and approved by a resolution of each

House.”

12      

Code by OFCOM about obligations to limit internet access

After section 124H of the Communications Act 2003 insert—

“124I   

 Code by OFCOM about obligations to limit internet access

30

(1)   

For any period during which there are one or more technical

obligations in force under section 124H, OFCOM must by order make

a technical obligations code for the purpose of regulating those

obligations.

(2)   

The code may be made separately from, or in combination with, any

35

initial obligations code under section 124D.

(3)   

A code under this section may—

(a)   

do any of the things mentioned in section 124C(3) to (5) or

section 124D(5)(a) to (g); and

(b)   

make other provision for the purpose of regulating the technical

40

obligations.

 
 

Digital Economy Bill [HL]

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(4)   

OFCOM must not make a code under this section unless they are

satisfied that it meets the criteria set out in section 124J.

(5)   

OFCOM must—

(a)   

keep a code under this section under review; and

(b)   

by order make any amendment of it that is necessary to ensure

5

that while it is in force it continues to meet the criteria set out in

section 124J.

(6)   

The consent of the Secretary of State is required for the making or

amendment by OFCOM of a code under this section.

(7)   

Section 403 applies to the power of OFCOM to make an order under

10

this section.

(8)   

A statutory instrument containing an order made by OFCOM under

this section is subject to annulment in pursuance of a resolution of

either House of Parliament.”

13      

Contents of code about obligations to limit internet access

15

After section 124I of the Communications Act 2003 insert—

“124J   

Contents of code about obligations to limit internet access

(1)   

The criteria referred to in section 124I(4) are—

(a)   

that the requirements concerning enforcement and related

matters are met in relation to the code (see subsections (2) and

20

(3));

(b)   

that the requirements concerning subscriber appeals are met in

relation to the code (see section 124K);

(c)   

that it makes any provision about contributions towards

meeting costs that is required to be included by an order under

25

section 124M;

(d)   

that it makes any other provision that the Secretary of State

requires it to make;

(e)   

that the provisions of the code are objectively justifiable in

relation to the matters to which it relates;

30

(f)   

that those provisions are not such as to discriminate unduly

against particular persons or against a particular description of

persons;

(g)   

that those provisions are proportionate to what they are

intended to achieve; and

35

(h)   

that, in relation to what those provisions are intended to

achieve, they are transparent.

(2)   

The requirements concerning enforcement and related matters are—

(a)   

that OFCOM have, under the code, the functions of

administering and enforcing it, including the function of

40

resolving owner-provider disputes;

(b)   

that there are adequate arrangements under the code for

OFCOM to obtain any information or assistance from internet

service providers or copyright owners that OFCOM reasonably

require for the purposes of administering and enforcing the

45

code; and

 
 

Digital Economy Bill [HL]

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(c)   

that there are adequate arrangements under the code for the

costs incurred by OFCOM in administering and enforcing the

code to be met by internet service providers and copyright

owners.

(3)   

The provision made concerning enforcement and related matters may

5

also (unless the Secretary of State requires otherwise) include, in

particular—

(a)   

provision for the payment, to a person specified in the code, of

a penalty not exceeding the maximum penalty for the time

being specified in section 124L(2);

10

(b)   

provision requiring a copyright owner to indemnify an internet

service provider for any loss or damage resulting from the

owner’s infringement or error in relation to the code or the

copyright infringement provisions.

(4)   

In this section “owner-provider dispute” means a dispute that—

15

(a)   

is between persons who are copyright owners or internet

service providers; and

(b)   

relates to an act or omission in relation to a technical obligation

or a technical obligations code.”

14      

Subscriber appeals

20

After section 124J of the Communications Act 2003 insert—

“124K   

  Subscriber appeals

(1)   

The requirements concerning subscriber appeals are—

(a)   

for the purposes of section 124E(1)(h), the requirements of

subsections (2) to (8); and

25

(b)   

for the purposes of section 124J(1)(b), the requirements of

subsections (2) to (11).

(2)   

The requirements of this subsection are—

(a)   

that the code confers on subscribers the right to bring a

subscriber appeal and, in the case of a technical obligations

30

code, a further right of appeal to the First-tier Tribunal;

(b)   

that there is a person who, under the code, has the function of

determining subscriber appeals;

(c)   

that that person is for practical purposes independent (so far as

determining subscriber appeals is concerned) of internet service

35

providers, copyright owners and OFCOM; and

(d)   

that there are adequate arrangements under the code for the

costs incurred by that person in determining subscriber appeals

to be met by internet service providers, copyright owners and

the subscriber concerned.

40

(3)   

The code must provide for the grounds of appeal (so far as an appeal

relates to, or to anything done by reference to, a copyright infringement

report) to include the following—

(a)   

that the apparent infringement to which the report relates was

not an infringement of copyright;

45

(b)   

that the report does not relate to the subscriber’s IP address at

the time of the apparent infringement.

 
 

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(4)   

The code must provide for the grounds of appeal to include

contravention by the copyright owner or internet service provider of

the code or of an obligation regulated by the code.

(5)   

The code must provide that an appeal on any grounds must be

determined in favour of the subscriber unless the copyright owner or

5

internet service provider shows that, as respects any copyright

infringement report to which the appeal relates or by reference to

which anything to which the appeal relates was done (or, if there is

more than one such report, as respects each of them)—

(a)   

the apparent infringement was an infringement of copyright,

10

and

(b)   

the report relates to the subscriber’s IP address at the time of

that infringement.

(6)   

The code must provide that, where a ground mentioned in subsection

(3) is relied on, the appeal must be determined in favour of the

15

subscriber if the subscriber shows that—

(a)   

the act constituting the apparent infringement to which the

report relates was not done by the subscriber, and

(b)   

the subscriber took reasonable steps to prevent other persons

infringing copyright by means of the internet access service.

20

(7)   

The powers of the person determining subscriber appeals must include

power—

(a)   

to secure so far as practicable that a subscriber is not prejudiced

for the purposes of the copyright infringement provisions by an

act or omission in respect of which an appeal is determined in

25

favour of the subscriber;

(b)   

to make an award of compensation to be paid by a copyright

owner or internet service provider to a subscriber affected by

such an act or omission; and

(c)   

where the appeal is determined in favour of the subscriber, to

30

direct the copyright owner or internet service provider to

reimburse the reasonable costs of the subscriber.

(8)   

The code must provide that the power to direct the reimbursement of

costs under subsection (7)(c) is to be exercised to award reasonable

costs to a subscriber whose appeal is successful, unless the person

35

deciding the appeal is satisfied that it would be unjust to give such a

direction having regard to all the circumstances including the conduct

of the parties before and during the proceedings.

(9)   

In the case of a technical obligations code, the powers of the person

determining subscriber appeals must include power—

40

(a)   

on an appeal in relation to a technical measure or proposed

technical measure—

(i)   

to confirm the measure;

(ii)   

to require the measure not to be taken or to be

withdrawn;

45

(iii)   

to substitute any other technical measure that the

internet service provider has power to take;

(b)   

to exercise the power mentioned in paragraph (a)(ii) or (iii)

where an appeal is not upheld but the person determining it is

 
 

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satisfied that there are exceptional circumstances that justify the

exercise of the power;

(c)   

to take any steps that OFCOM could take in relation to the act

or omission giving rise to the technical measure; and

(d)   

to remit the decision whether to confirm the technical measure,

5

or any matter relating to that decision, to OFCOM.

(10)   

In the case of a technical obligations code, the code must make

provision—

(a)   

enabling a determination of a subscriber appeal to be appealed

to the First-tier Tribunal, including on grounds that it was based

10

on an error of fact, wrong in law or unreasonable;

(b)   

giving the First-tier Tribunal, in relation to an appeal to it, the

powers mentioned in subsections (7) and (9); and

(c)   

in relation to recovery of costs awarded by the Tribunal.

(11)   

In the case of a technical obligations code, the code must include

15

provision to secure that a technical measure is not taken against a

subscriber until—

(a)   

the period for bringing a subscriber appeal, or any further

appeal to the First-tier Tribunal, in relation to the proposed

measure has ended (or the subscriber has waived the right to

20

appeal); and

(b)   

any such subscriber appeal or further appeal has been

determined, abandoned or otherwise disposed of.”

15      

Enforcement of obligations

After section 124K of the Communications Act 2003 insert—

25

“124L   

 Enforcement of obligations

(1)   

Sections 94 to 96 apply in relation to a contravention of an initial

obligation or a technical obligation, or a contravention of an obligation

under section 124G(6), as they apply in relation to a contravention of a

condition set out under section 45.

30

(2)   

The amount of the penalty imposed under section 96 as applied by this

section is to be such amount not exceeding £250,000 as OFCOM

determine to be—

(a)   

appropriate; and

(b)   

proportionate to the contravention in respect of which it is

35

imposed.

(3)   

In making that determination OFCOM must have regard to—

(a)   

any representations made to them by the internet service

provider or copyright owner on whom the penalty is imposed;

(b)   

any steps taken by the provider or owner towards complying

40

with the obligations contraventions of which have been notified

to the provider under section 94 (as applied); and

(c)   

any steps taken by the provider or owner for remedying the

consequences of those contraventions.

 
 

Digital Economy Bill [HL]

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(4)   

The Secretary of State may by order amend this section so as to

substitute a different maximum penalty for the maximum penalty for

the time being specified in subsection (2).

(5)   

No order is to be made containing provision authorised by subsection

(4) unless a draft of the order has been laid before Parliament and

5

approved by a resolution of each House.”

16      

Sharing of costs

After section 124L of the Communications Act 2003 insert—

“124M   

 Sharing of costs

(1)   

The Secretary of State may by order specify provision that must be

10

included in an initial obligations code or a technical obligations code

about payment of contributions towards costs incurred under the

copyright infringement provisions.

(2)   

Any provision specified under subsection (1) must relate to payment of

contributions by one or more of the following only—

15

(a)   

copyright owners;

(b)   

internet service providers;

(c)   

in relation to a subscriber appeal or a further appeal by a

subscriber to the First-tier Tribunal, the subscriber.

(3)   

Provision specified under subsection (1) may relate to, in particular—

20

(a)   

payment by a copyright owner of a contribution towards the

costs that an internet service provider incurs;

(b)   

payment by a copyright owner or internet service provider of a

contribution towards the costs that OFCOM incur.

(4)   

Provision specified under subsection (1) may include, in particular—

25

(a)   

provision about costs incurred before the provision is included

in an initial obligations code or a technical obligations code;

(b)   

provision for payment in advance of expected costs (and for

reimbursement of overpayments where the costs incurred are

less than expected);

30

(c)   

provision about how costs, expected costs or contributions must

be calculated;

(d)   

other provision about when and how contributions must be

paid.

(5)   

No order is to be made under this section unless a draft of the order has

35

been laid before Parliament and approved by a resolution of each

House.”

17      

Interpretation and consequential provision

(1)   

After section 124M of the Communications Act 2003 insert—

“124N   

 Interpretation

40

In sections 124A to 124M and this section—

 
 

 
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