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7 Apr 2010 : Column 1135

Clause 8

Contents of initial obligations code

Mr. Timms: I beg to move amendment 2, page 11, line 23, leave out from 'transparent' to end of line 26.

The Second Deputy Chairman: With this it will be convenient to discuss the following: clause 18 stand part.

Government new clause 1- Power to make provision about injunctions preventing access to locations on the internet.

Government new clause 2- Consultation and Parliamentary scrutiny .

Mr. Timms: We want to remove clause 18, the text of which was inserted in another place on a joint initiative of the Conservatives and Liberal Democrats. New clauses 1 and 2 contain amended provisions, and I hope I can persuade the Committee that our approach is the right way to proceed.

We have set out why we did not think that the clause 18, which was inserted by the other place, would work and our concerns about introducing such provisions in such a way and at such a time. We have also set out why we think the text in new clauses 1 and 2 would have the same benefits, but ensure proper consideration, including full consultation and proper safeguards. The key benefits of the amended approach are that, as a power to introduce regulations, which is what we are providing for, it is enforceable; it does not immediately fall foul of the technical standards directive, as the existing text would.

There will be proper opportunities to consult on the measure and for Parliament to consider it via the now famous super-affirmative procedure, with any recommendations having to be taken into account. The Secretary of State must consider the proportionality of the regulations and the evidence that they are necessary to deal with infringement that is having a serious adverse effect. We can also ensure that any security law enforcement concerns are properly taken on board.

In addition, should such regulations be introduced, the court from which an order was being sought would need to consider carefully legitimate uses and users affected by any order, as well as have due regard to freedom of expression. We certainly do not want the clause to be used to restrict freedom of speech. We want to ensure that the safeguards are properly considered and that ISPs do not have an incentive to block sites purely on the basis of an allegation, for fear of bearing costs-although we also need to ensure that ISPs are not allowed to flout a decision of the court. Essentially, our view is that the costs should be borne, not by the ISPs, but by those seeking a court order.

The new clause we propose does the job of dealing with online infringement other than unlawful file sharing, which is dealt with by earlier parts of the Bill, but adds safeguards to ensure that the position of internet intermediaries and citizens are properly protected. On that basis, I commend the amendments.

Mr. Don Foster: On Second Reading, I acknowledged that two thirds of current illegal activity on the internet, which is costing our creative industries dear, comes
7 Apr 2010 : Column 1136
from illegal peer-to-peer file sharing, but the other third comes largely from persons downloading material from illegal websites, often hosted in Russia and that part of the world. Clearly, that is wrong and action is needed.

Having got rid of the all-embracing clause 17 in the original Bill, which gave the Secretary of State unfettered powers, my colleagues in another place thought it appropriate to table an amendment to deal with the problem of illegal websites. However, we did so in the certain knowledge at that time that we would not have got it all right and that it was likely to be the subject of extensive debate in this House. As I freely acknowledged last night and I repeat now, there is considerable concern in the community about that amendment; however, there is also widespread concern about the new clause now proposed, which has many faults.

First, the new clause penalises sites that facilitate access, or that are

That is too wide ranging and even puts sites such as Google at risk. Injunctions can be used against sites that are not only making such material available in the present, but that have done so in the past and that "are likely to". That is hardly a good basis for the principle of innocent till proved guilty.

There is not enough indication that the rights holders must take reasonable steps to notify the site owner before seeking an injunction. The proposed injunctions are indefinite, which is inappropriate, and the injunctions would, it appears, not cover all service providers. Infringing customers could therefore simply move from one provider to another, as the hon. Member for Sittingbourne and Sheppey (Derek Wyatt) said earlier. There are many faults in new clause 1. For the reasons that I have given, and because of the House's total lack of ability to scrutinise the proposals in detail, we will vote against amendment 2.

10.45 pm

Adam Afriyie: To be absolutely clear, in the other place, the Liberal Democrats proposed an amendment to the Bill, and argued vehemently in favour of it. Here in the House of Commons, they are now arguing against it. Am I right in understanding that to be the situation?

Mr. Foster: Of course the hon. Gentleman understands the situation absolutely correctly; he was present in the House on Second Reading when I made it perfectly clear. However, a person who has significant problems drawn to their attention is foolish if they do not take any notice of them, particularly in circumstances where, because of the Government's failure to provide adequate time, there has been no proper detailed consultation. I am surprised that the hon. Gentleman is willing to accept new clause 1.

Adam Afriyie: That was the most elegant of U-turns; it was beautifully put. It highlights the point that we have detailed and onerous decisions to make. I simply point out that the Bill has been incompetently rushed through the House of Commons, and many of the measures will need to be revisited at a future date.

Mr. Timms: Let me just remind the hon. Member for Bath (Mr. Foster) that what we are doing is taking powers to make regulations. The issues that he has
7 Apr 2010 : Column 1137
raised can, will and should be fully scrutinised through the super-affirmative procedure when the regulations are drawn up.

Question put, That the amendment be made.

The Committee divided: Ayes 197, Noes 40.
Division No. 131]
[10.47 pm


Afriyie, Adam
Alexander, rh Mr. Douglas
Allen, Mr. Graham
Amess, Mr. David
Anderson, Mr. David
Austin, Mr. Ian
Bailey, Mr. Adrian
Bain, Mr. William
Baird, Vera
Balls, rh Ed
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Beckett, rh Margaret
Benton, Mr. Joe
Berry, Roger
Betts, Mr. Clive
Blackman, Liz
Blizzard, Mr. Bob
Bradshaw, rh Mr. Ben
Brennan, Kevin
Brown, rh Mr. Nicholas
Browne, rh Des
Bryant, Chris
Buck, Ms Karen
Butler, Ms Dawn
Byrne, rh Mr. Liam
Caborn, rh Mr. Richard
Cairns, David
Campbell, Mr. Alan
Chapman, Ben
Clapham, Mr. Michael
Clark, Paul
Clarke, rh Mr. Charles
Clelland, Mr. David
Clwyd, rh Ann
Coaker, Mr. Vernon
Coffey, Ann
Cohen, Harry
Connarty, Michael
Cooper, Rosie
Cooper, rh Yvette
Creagh, Mary
Cryer, Mrs. Ann
Cunningham, Tony
Davidson, Mr. Ian
Davies, Mr. Quentin
Dean, Mrs. Janet
Dismore, Mr. Andrew
Dobbin, Jim
Dobson, rh Frank
Doran, Mr. Frank
Dowd, Jim
Eagle, Angela
Eagle, Maria
Efford, Clive
Ellman, Mrs. Louise
Evans, Mr. Nigel
Fabricant, Michael
Fitzpatrick, Jim
Flint, rh Caroline
Follett, Barbara
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Francis, Dr. Hywel
Gapes, Mike
Gardiner, Barry
George, rh Mr. Bruce
Gerrard, Mr. Neil
Gilroy, Linda
Goggins, rh Paul
Goodman, Helen
Hall, Mr. Mike
Hamilton, Mr. David
Hanson, rh Mr. David
Harman, rh Ms Harriet
Havard, Mr. Dai
Hayes, Mr. John
Healey, rh John
Henderson, Mr. Doug
Hendrick, Mr. Mark
Hesford, Stephen
Hill, rh Keith
Hillier, Meg
Hodgson, Mrs. Sharon
Hoon, rh Mr. Geoffrey
Hope, Phil
Hopkins, Kelvin
Humble, Mrs. Joan
Hunt, Mr. Jeremy
Hutton, rh Mr. John
Iddon, Dr. Brian
Illsley, Mr. Eric
Ingram, rh Mr. Adam
Irranca-Davies, Huw
Jackson, Glenda
James, Mrs. Siân C.
Johnson, rh Alan
Johnson, Ms Diana R.
Jones, Helen
Jones, Mr. Kevan
Jones, Mr. Martyn
Jowell, rh Tessa
Keeley, Barbara
Keen, Alan
Keen, Ann
Kelly, rh Ruth
Kemp, Mr. Fraser
Khan, rh Mr. Sadiq
Kidney, Mr. David
Ladyman, Dr. Stephen
Lammy, rh Mr. David
Laxton, Mr. Bob
Lepper, David
Levitt, Tom
Linton, Martin

Lucas, Ian
Mackinlay, Andrew
MacShane, rh Mr. Denis
Mann, John
McAvoy, rh Mr. Thomas
McCabe, Steve
McCarthy-Fry, Sarah
McDonnell, John
McFadden, rh Mr. Pat
McFall, rh John
McIntosh, Miss Anne
McKechin, Ann
McNulty, rh Mr. Tony
Merron, Gillian
Michael, rh Alun
Milburn, rh Mr. Alan
Moffatt, Laura
Mole, Chris
Morden, Jessica
Mountford, Kali
Mudie, Mr. George
Mullin, Mr. Chris
Munn, Meg
Naysmith, Dr. Doug
Norris, Dan
O'Brien, rh Mr. Mike
O'Hara, Mr. Edward
Osborne, Sandra
Owen, Albert
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Pound, Stephen
Prentice, Bridget
Primarolo, rh Dawn
Purchase, Mr. Ken
Purnell, rh James
Randall, Mr. John
Raynsford, rh Mr. Nick
Reed, Mr. Jamie
Robertson, John
Ruddock, Joan
Salter, Martin
Seabeck, Alison
Sharma, Mr. Virendra
Sheridan, Jim
Simon, Mr. Siôn
Skinner, Mr. Dennis
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, rh Angela E. (Basildon)
Spellar, rh Mr. John
Stewart, Ian
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Straw, rh Mr. Jack
Sutcliffe, Mr. Gerry
Tami, Mark
Thomas, Mr. Gareth
Timms, rh Mr. Stephen
Touhig, rh Mr. Don
Trickett, Jon
Ussher, Kitty
Vaizey, Mr. Edward
Waltho, Lynda
Ward, Claire
Watts, Mr. Dave
Whitehead, Dr. Alan
Wicks, rh Malcolm
Wiggin, Bill
Williams, rh Mr. Alan
Williams, Mrs. Betty
Wills, rh Mr. Michael
Wilson, Phil
Winnick, Mr. David
Winterton, rh Ms Rosie
Woodward, rh Mr. Shaun
Woolas, Mr. Phil
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Wyatt, Derek
Tellers for the Ayes:

Lyn Brown and
Kerry McCarthy

Abbott, Ms Diane
Austin, John
Barrett, John
Beith, rh Sir Alan
Breed, Mr. Colin
Burgon, Colin
Burstow, Mr. Paul
Carmichael, Mr. Alistair
Challen, Colin
Chope, Mr. Christopher
Corbyn, Jeremy
Davey, Mr. Edward
Davies, Mr. Dai
Davis, rh Mr. David
Drew, Mr. David
Featherstone, Lynne
Foster, Mr. Don
Grogan, Mr. John
Hancock, Mr. Mike
Harris, Dr. Evan
Hoey, Kate
Howarth, David
Howarth, rh Mr. George
Hughes, Simon
Jones, Lynne
Joyce, Eric
Keetch, Mr. Paul
Kilfoyle, Mr. Peter
Lazarowicz, Mark
Marshall-Andrews, Mr. Robert
Mitchell, Mr. Austin
Öpik, Lembit
Palmer, Dr. Nick
Price, Adam
Reed, Mr. Andy
Russell, Bob
Simpson, Alan
Thurso, John
Todd, Mr. Mark
Watson, Mr. Tom
Tellers for the Noes:

John Hemming and
Mr. John Leech
Question accordingly agreed to.
7 Apr 2010 : Column 1138

Amendment 2 agreed to.

7 Apr 2010 : Column 1139
10.58 pm

More than two hours having elapsed since the commencement of proceedings in the Committee, the proceedings were interrupted (Order, this day).

The Chair put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D).

Clause 8, as amended, ordered to stand part of the Bill.

Clauses 9 and 10 ordered to stand part of the Bill.

Clause 11

Obligations to limit internet access

Amendments made: 44, page 15, line 25, after 'unless' insert-

Amendment 45, page 15, line 27, at end insert-

Clause 11, as amended, ordered to stand part of the Bill.

Clauses 12 to 14 ordered to stand part of the Bill.

Clause 15

Enforcement of obligations

Amendment made: 3, page 19, line 42, after 'provider' insert 'or owner'.- (Mr. Timms.)

Clause 15, as amended, ordered to stand part of the Bill.

Clauses 16 and 17 ordered to stand part of the Bill.

Clause 18 disagreed to.

Clauses 19 to 28 ordered to stand part of the Bill.

Clause 29 disagreed to.

Clauses 30 to 42 ordered to stand part of the Bill.

Clause 43 disagreed to.

Clauses 44 to 48 ordered to stand part of the Bill.

7 Apr 2010 : Column 1140

Clause 49


Amendment made: 7, page 59, line 44, at end insert

'and the entry in Schedule 3 relating to the Public Lending Right Act 1979 (and section 47 so far as it relates to that entry)'.- (Mr. Timms.)

Clause 49, as amended, ordered to stand part of the Bill.

Clause 50

Short title

Amendment made: 8, page 60, line 3, leave out subsection (2).

Clause 50, as amended, ordered to stand part of the Bill.

Schedule 1 agreed to.

Schedule 2 disagreed to.

Schedule 3 agreed to.

New Clause 1

Power to make provision about injunctions preventing access to locations on the internet

'(1) The Secretary of State may by regulations make provision about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright.

(2) "Blocking injunction" means an injunction that requires a service provider to prevent its service being used to gain access to the location.

(3) The Secretary of State may not make regulations under this section unless satisfied that-

(a) the use of the internet for activities that infringe copyright is having a serious adverse effect on businesses or consumers,

(b) making the regulations is a proportionate way to address that effect, and

(c) making the regulations would not prejudice national security or the prevention or detection of crime.

(4) The regulations must provide that a court may not grant an injunction unless satisfied that the location is-

(a) a location from which a substantial amount of material has been, is being or is likely to be obtained in infringement of copyright,

(b) a location at which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright, or

(c) a location which has been, is being or is likely to be used to facilitate access to a location within paragraph (a) or (b).

(5) The regulations must provide that, in determining whether to grant an injunction, the court must take account of-

(a) any evidence presented of steps taken by the service provider, or by an operator of the location, to prevent infringement of copyright in the qualifying material,

(b) any evidence presented of steps taken by the copyright owner, or by a licensee of copyright in the qualifying material, to facilitate lawful access to the qualifying material,

(c) any representations made by a Minister of the Crown,

(d) whether the injunction would be likely to have a disproportionate effect on any person's legitimate interests, and

(e) the importance of freedom of expression.

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