Memorandum submitted jointly by the Department
of Culture, Media and Sport and the Department for Business, Innovation
and Skills
Introduction
1. This memorandum is provided jointly by the Department
for Culture, Media and Sport and the Department for Business,
Innovation and Skills in respect of the Digital Economy Bill.
This memorandum sets out the reasons why the Departments consider
that the Bill is compatible with the European Convention on Human
Rights. A declaration of compatibility has been made by Lord Mandelson
in respect of the Bill.
General Assessment of compatibility with Convention
rights potentially engaged by the Bill
2. The Committee is provided, with this Memorandum,
with a copy of the Explanatory Notes to the Bill, which set out
the Departments' analysis of the individual clauses, and also
give details of the Departments' analysis of the overall compatibility
of the Bill with the European Convention on Human Rights.
3. The Departments have considered the compatibility
of all the clauses of the Bill with the European Convention on
Human Rights. Only those clauses which raise any potential compatibility
issues are referred to below. The Departments are satisfied that
there are no Convention rights potentially engaged by the remainder
of the clauses.
Detailed Assessment of compatibility with Convention
rights potentially engaged by the Bill
Power for Ofcom to require information from
network providers (clause 2)
4. The clause gives Ofcom additional power to require
certain information to be provided to it under the existing power
given to Ofcom in section 135 of the Communications Act 2003.
Article 8 is potentially engaged by this provision but whether
the exercise of such a power breaches the Convention would depend
on the circumstances and use of the power.
5. The power to require additional information is
necessary to enable Ofcom to fulfil its new reporting duties under
this clause in relation to the resilience of the United Kingdom's
communications infrastructure and to internet domain names. It
is possible that some of that information may constitute commercially
confidential information. Such information supplied by network
providers is capable of being information which would engage Article
8.
6. Ofcom is a public authority for the purposes of
section 6 of the Human Rights Act and will and must therefore
exercise any power compatibly with Convention rights. Sections
137 and 393 of the Communications Act 2003 places restrictions
on the gathering and disclosure of information gathered under
powers under that Act. The Departments do not therefore consider
that conferring this power on Ofcom breaches Article 8.
7. Whilst the Departments do not consider that Article
6 of the Convention is engaged in relation to these provisions,
the Departments note that the Joint Committee was concerned about
the information gathering powers given to Ofcom under what became
section 135 of the Communications Act 2003 and drew Parliament's
attention to these powers in relation to Article 6 of the Convention.
However, the Departments would note that the Joint Committee was
concerned in relation to the power then taken because it considered
that there was a risk of self-incrimination contrary to Article
6 of the Convention. The purpose of the present provision, whilst
it does entail the provision of information, is not of the same
nature as that which caused the Committee concern during the passage
of the Communications Bill. In particular, the concern of the
Committee during the passage of the Communications Bill was because
the information would be expected to be used in the context of
the application of penalties to network providers. However, the
present provisions are not akin, insofar as the information supplied
will be used for the purposes of informing government policy and
not for the purpose of incrimination, and Article 6 of the Convention
is not therefore engaged in relation to the provisions of this
Bill.
Online infringement of copyright (clauses 4
- 17)
Notification provisions
8. The Articles which are potentially engaged by
this provision are Article 8 and Article 1 of the First Protocol.
9. Article 8 and Article 1 of the First Protocol
are potentially engaged as follows. The Bill will place requirements
on internet service providers (ISPs) to comply with two initial
obligations; to send notifications to subscribers who have been
identified by rights holders in relation to alleged infringements
of copyright, and to maintain internal records of the number of
times an individual subscriber has been identified and to maintain
lists of those most frequently identified.
10. The sending of letters to internet subscribers
notifying them of their alleged copyright infringements does not
engage either Article 8 or Article 1 of the First Protocol, as
the procedure merely constitutes a deterrent, and does not affect
subscribers' rights at all, since they will continue to receive
the services they contracted for from ISPs.
Additional technical measures
11. The Articles which are potentially engaged by
this provision are Article 6, Article 8, Article 10 and Article
1 of the First Protocol.
12. Once the notification provisions set out in paragraph
5 have been operative for a certain period of time, the Secretary
of State will have the power to direct ISPs to impose technical
measures on internet subscribers which may include temporary suspension,
bandwidth capping and bandwidth shaping. Ofcom will adopt a code
of practice setting out all the necessary procedural aspects to
enable ISPs to give effect to these measures.
13. Articles 8 and 10 and Article 1 of the First
Protocol are potentially engaged as follows. When following the
rules specified by the Secretary of State and the procedural provisions
specified by Ofcom in a code for giving effect to the technical
measures (as set out at paragraph 8) in respect of a subscriber's
internet account, ISPs will potentially be hindering subscribers
from accessing the internet (and hence their e-correspondence),
or from having the broadband connection speed/content they contracted
for. These measures may amount to interferences in the right to
respect for private life, the right to freedom of expression and
the right to peaceful possession of property. The rights are engaged
because affecting the ability of a subscriber to access the internet
at a given speed, or, potentially, at all, will tend to affect
their ability to communicate with others by on-line methods (by
email, and through instant messaging, and contributions to internet
discussions). This would tend to affect their private and family
life in the widest sense, but also Article 10 rights to freedom
of expression and freedom of information. Such interference does
not render the provisions incompatible with the Convention, however
for the reasons set out in paragraph 10.
14. Both Article 8 and Article 1 of the First Protocol
are qualified rights. It is acceptable under the Convention to
interfere with such rights provided that the interference is in
the public interest and in accordance with the law. Article 10
is likewise a qualified right, and it is acceptable under the
Convention to interfere with this right in the interests of a
democratic society and in accordance with the law. This provision
represents an acceptable balance between subscribers' rights and
the public interest in the protection of the copyright of third
parties. In particular, the qualifications to Article 8 and Article
1 of the First Protocol require consideration of the rights of
others. Copyright holders have limited methods of protecting that
copyright, which may be less effective across national boundaries,
and accordingly, therefore, where it is infringed on the internet.
Moreover, subscribers may be infringing the rights of more than
one copyright holder at a time, and these provisions permit action
on behalf of many copyright holders. By warning subscribers that
they are infringing the rights of others, and permitting them
to rebut the assumptions underlying that warning, and only when
a warning is not heeded by imposing technical measures, these
provisions strike the balance appropriately between the rights
of subscribers and the rights of copyright holders. The case of
Promusicae Telefonica de España[68]recognised
that the effective protection of copyright constituted a legitimate
interest, and provided guidance on the criteria to be followed
to strike a fair balance between the various fundamental rights
(see in particular paragraphs 57 to 70 of the judgment).
15. Article 6 is potentially engaged as follows.
A determination by ISPs when applying the rules made by the Secretary
of State for the imposition of technical measures is likely to
amount to a determination of a civil right or obligation within
the meaning of Article 6 of the Convention. The legislation provides
for appropriate review mechanisms by an independent and impartial
tribunal, and these mechanisms render the provisions compatible
with the Convention. Effectively, the subscriber will be able
to seek a review of the decision of the ISP, in the first instance
by an independent tribunal, as set out by Statutory Instrument
(at the same time as Ofcom adopts a code of practice). Appeals
to decisions of that tribunal will be to the first-tier tribunal.
Both appeals to decisions of the independent tribunal and the
first-tier tribunal may have the effect of suspending the application
of the technical measure, until independent tribunal or first-tier
tribunal resolves the appeal.
16. Accordingly, the legislation is consistent with
the Convention, insofar as the proposed technical measures are
designed to pursue the protection of a legitimate interest (i.e.
protection of copyright), are appropriately targeted, proportionate
for the purposes of safeguarding the legitimate interest they
are designed to protect, and subscribers will have access to a
review by an impartial tribunal and an appeal to the first tier
tribunal to challenge the ISP's decision to impose technical measures
on them.
17. As set out in paragraph 15, the legislation provides
for subscribers to be able to appeal the ISP's decisions on the
imposition of technical measures in the first instance, to an
impartial tribunal set out in legislation made by Ofcom. Subsequently,
subscribers will have a right to appeal that tribunal's decision
to the first-tier tribunal. With reference to any decision in
respect of technical measures, the legislation provides that the
imposition of those technical measures may be postponed pending
the determination of an appeal by the impartial tribunal and/or
the first-tier tribunal.
Power to amend copyright provisions
18. No Articles are engaged by the provision itself
as the provision only contains a power and has no immediate substantive
effect.
19. Clause 17 inserts a new section 302A into the
Copyright, Designs and Patents Act 1988. It enables the Secretary
of State to make provision by order to amend Part 1 or Part 7
of that Act for the purpose of preventing or reducing online copyright
infringement, if it appears to the Secretary of State appropriate
to do so having regard to technological developments that have
occurred or are likely to occur.
20. Articles may be engaged by an exercise of the
power but the power will have to be exercised in a manner which
is compatible with Convention rights as section 3 of the Human
Rights Act 1998 requires powers to be exercised in a manner that
is compatible with those rights.
Power in relation to domain name registries
(clauses 18 - 20)
21. The Articles which are potentially engaged by
these provisions are Article 1 of the First Protocol and Article
6.
22. The provisions amend the Communications Act 2003
in order to regulate internet domain name registries. They are
the entities that allocate internet domain names to end users.
Internet domain names (such as www.google.co.uk) underpin the
addressing system for the Internet. The provisions give certain
powers to the Secretary of State in circumstances where there
has been a serious failure of a registry because either: (a) the
registry itself, its end-users (owners of or applicants for domain
names) or registrars (agents of end-users) have been engaging
in unfair practices (such as cyber-squatting or registering misleading
domain names); or (b) the registry does not have adequate arrangements
for dealing with complaints in connection with domain names.
23. In either case the Secretary of State may only
act if the failure has (a) adversely affected or is likely adversely
to affect the reputation or availability of electronic communications
networks or services provided in the UK, or the interests of consumers
or the public in the UK, and (b) if the registry has been allowed
a reasonable period for making representations (and that period
has expired). In those circumstances, the Secretary of State may
appoint a manager in respect of the property and affairs of the
registry to secure that appropriate steps are taken to remedy
the failure or the consequences of the failure, and/or the Secretary
of State may apply to the court to seek an order making such alterations
to that registry's constitution as are necessary to secure that
appropriate steps are taken to remedy the failure or the consequences
of the failure. The registries will have a right of appeal on
both the facts and the law to the Competition Appeal Tribunal,
an independent body, from a decision to appoint a manager (and
thence to the Court of Appeal on a point of law), and the registry
will have a right of appeal to a higher court in respect of a
court decision to alter its constitution.
24. Rights under Article 1 of the First Protocol
are qualified rights. It is acceptable under the Convention to
interfere with such rights provided that the interference is in
accordance with law and is necessary in the public interest. The
measures to be taken by the Secretary of State are only to be
taken in circumscribed circumstances, to secure specified aims,
following adequate opportunity for the registry to make representations.
The registries will be able to appeal the decision thereafter.
Therefore, although the appointment of a manager and/or the alteration
of a registry's constitution may amount to interference in the
property rights relating to a particular registry, these provisions
nonetheless represent an appropriate balance between the private
rights of registries and their owners to conduct their businesses
freely and the public interest in ensuring that the entities which
register internet domain names do not operate in a manner which
impacts negatively upon consumers, the general public, or the
reputation of the UK's internet economy.
25. Alteration of the constitution of a registry
and the appointment of a manager also arguably engage the determination
of civil rights and/or obligations pursuant to Article 6 of the
Convention. However, with regard to the proposed right for a court
to alter the constitution of a registry, Article 6 rights are
secured by the fact that (a) alteration can only take place after
the Secretary of State has applied to the court for an order to
alter the constitution of a designated registry, and (b) that
the court's decision will itself be appealable to a higher court.
Furthermore, the alteration the court may make is limited to the
changes that are necessary for securing that the registry rectifies
a relevant failure or remedies the consequences of such a failure.
With regard to the appointment of a manager over the affairs and
property of the registry, Article 6 rights are secured by the
fact that (a) the powers of the manager are limited by the provision
that the sole purpose of the appointment is to secure that the
registry rectifies the relevant failure or to remedy the consequences
of the failure, and (b) that the decision is appealable on both
the facts and the law to the Competition Appeal Tribunal (and
thereafter to the Court of Appeal on a point of law).
26. In those circumstances, the provisions relating
to the possible alteration of the constitution of a registry or
the appointment of a manager do not amount to a breach of Article
6 of the Convention.
Power for the Secretary of State to re-impose
conditions under the regulatory regime for Channel 3 and Channel
5 licence holders (clause 37)
27. The Article which is potentially engaged by this
provision is Article 1 of the First Protocol.
28. Article 1 of the First Protocol is potentially
engaged as follows. The Secretary of State currently has the power
under section 263 of the Communications Act 2003 to provide that
conditions which are included as part of the regulatory regime
for any service should cease to be so included, whether permanently
or on a temporary basis. Those conditions include, for example,
programming quotas, and conditions in relation to news and current
affairs programming. The power is being extended to provide that
the Secretary of State has power to re-impose conditions which
were previously excluded by an order made under section 263. This
may adversely affect the rights of licence holders if conditions
are re-imposed on the licences which they hold.
29. Rights under Article 1 of the First Protocol
are qualified rights. It is acceptable under the Convention to
interfere with such rights provided that the interference is in
accordance with law and is necessary in the public interest. The
regulatory regime at Part 3 of the Communications Act 2003 is
applicable to public service broadcasters. Those broadcasters
apply for licences on the basis that they wish to be public service
broadcasters, and with the expectation that conditions will be
placed upon their licences to secure compliance with a regime
designed to protect the public service nature of their broadcasting
output. This provision strikes an appropriate balance between
the rights of broadcasters and the general public interest in
securing a robust regulatory regime for public service broadcasting.
30. Furthermore, during the licence application procedure,
broadcasters will have structured their businesses to meet the
conditions which Ofcom would impose on that licence as part of
the regulatory regime. It is those conditions which would potentially
be removed and reimposed. As no orders have been yet made removing
conditions, broadcasters will take the advantage of any measures
which remove conditions, but will also have structured their businesses
in the expectation that they would have to accommodate those conditions
which currently form part of the regulatory regime applicable
to them.
Power to allow Ofcom to levy penalties for
failure to meet licence conditions (clause 38)
31. The articles which are potentially engaged by
this provision are Articles 6 and Article 1 of the First Protocol.
32. Article 6 is potentially engaged as follows.
Ofcom may impose a penalty on a licence holder who fails to comply
with particular provisions of a licence which was granted as the
result of an auction following a direction given by the Secretary
of State. The imposition of this penalty will be a determination
of civil rights under Article 6. However, the procedures involved
in determining those civil rights are not such as to amount to
a breach of Article 6 for the reasons set out in paragraph 33.
33. Ofcom is a statutory body, established under
the Communications Act 2003, and is required to act in a proportionate
and reasonable manner itself in accordance with section 6 of the
Human Rights Act. Moreover, an appeal against a decision to levy
such a penalty will lie to the Competition Appeal Tribunal, an
independently constituted body. The availability of such an appeal
secures compliance with Article 6 of the Convention.
34. Article 1 of the First Protocol is potentially
engaged because the levying of a penalty arguably amounts to a
deprivation of licence holders' possessions. However, Article
1 of the First Protocol is a qualified right, and interference
is permitted by the Convention if prescribed by law and in the
public interest. This provision strikes an appropriate balance
between the rights of individual licence holders and the public
interest in the opening up of spectrum to further competition
in the field of mobile broadband, and ensuring that those who
use spectrum are properly regulated. Safeguards against the disproportionate
exercise of this power include a ceiling on the amount of the
penalty, the requirement that the amount be appropriate and proportionate
and the duty of Ofcom to give reasons regarding the imposition
of a penalty.
Provisions in relation to video games classification
(clauses 40 - 41 and Schedule 1)
35. The Articles which are potentially engaged by
these provisions are Article 6, Article 8, Article 10, and Article
1 of the First Protocol.
36. The Bill will amend the VRA to extend the statutory
classification requirement to cover all video games that are suitable
to be viewed by persons aged 12 or over. The provisions implement
the recommendations of Professor Tanya Byron's review, Safer
Children in a Digital World. Currently video games are exempted
from classification unless they contain gross violence, human
sexual activity or other matters of concern listed in sections
2(2) and 2(3) of the VRA. Video games will now only be exempt
from the statutory classification requirement if i) they fall
within the existing exemptions set out in section 2(1) of the
VRA (namely, they are designed to inform, educate or instruct,
or they are concerned with sport, religion or music), ii) they
are arcade games, iii) they do not meet certain threshold criteria
listed in new subsection 2A, or iv) they are considered suitable
to be viewed by persons under 12 years and this has been confirmed
in writing by the designated authority.
37. The Bill will also amend the VRA to allow more
than one designated authority to make arrangements under section
4 of that Act. There will be an authority designated for video
games and another separate authority designated with respect to
other video works.
Classification of video games
38. Article 10 is potentially engaged as follows.
The right protected by Article 10 encompasses the freedom to receive
and/or impart information and ideas (including negative or offensive
information[69]). Article
10 affords the opportunity to take part in the public exchange
of cultural, political and social information and ideas of all
kinds. The designated body is concerned with classifying video
works, which includes the provision of age ratings to apply to
those works and advice on what is contained within the work. The
amendments to be made to the VRA by these provisions with respect
to video games mean that more of those games fall within the ambit
of the Act and hence are subject to a classification requirement.
It is arguable that the classification requirement interferes
with the Article 10 rights of producers and publishers to impart
information to the public.
39. Article 10 is a qualified right, and interference
with this right is compatible with the Convention if prescribed
by law and necessary in a democratic society in the interests
of a legitimate aim (for example the protection of health or morals
and/or the prevention of crime and disorder). The system of regulation
and control provided by the VRA and the amendments to it to be
made by these provisions form a range of domestic standards which
represent an acceptable balance between the rights of producers
and publishers to distribute their work and the legitimate interest
in the protection of health or morals, and the prevention of crime
or disorder. One of the purposes of the classification of video
games is to better protect children from the impact of age-inappropriate
material and thus to protect the health and morals of those children.
The VRA and the changes to it made by these provisions do not
amount to a breach of the rights enshrined by Article 10 of the
Convention.
40. The changes to be made to the VRA potentially
engage Article 1 of the First Protocol. The measures may affect
the profitability or viability of the producers and publishers
of video works and games, and therefore their economic interests
connected with the running of those businesses.
41. Article 1 of the First Protocol is a qualified
right, and interference with that right is compatible with the
Convention if in accordance with the law and necessary in the
public interest. This measure strikes an appropriate balance between
the rights of businesses to operate freely, and the need to protect
public health and morals. The impact of the VRA and these changes
is not to prevent businesses from operating freely, but to ensure
that they operate freely within a system of regulation that is
aimed at better informing parents and consumers about what they
will be viewing, having special regard to the ready availability
of video recordings and video games to children and young adults.
The public interest lies in the protection of children and young
adults from viewing games or other video recordings which may
be unsuitable for their age or stage of development.
Appeals from classification decisions
42. Article 6 is potentially engaged as follows.
It is proposed that the designated persons who make decisions
on classification will be the principal office holders of the
Video Standards Council. In designating those persons, the Secretary
of State must be satisfied that adequate arrangements will be
made for an appeal from classification decisions. The Secretary
of State will require that the appeal body that will hear such
appeals will be structurally independent of that organisation,
in that no members of the Video Standards Council will sit on
the appeal body. An appeal from a determination as to whether
a video game is suitable for classification and if so, the determination
of the classification (age rating) that applies to it, is arguably
a civil right for the purposes of Article 6.
43. The Departments have considered whether the appeal
system to be set up falls within the category examined by the
European Court of Human Rights in Tsfayo v United Kingdom[70].
If it were to fall within that category, notwithstanding the availability
of judicial review against the determination of the appeal body,
it is possible that the system would amount to a breach of Article
6. However, the system to be set up in this case can properly
be distinguished from Tsfayo. This is primarily because
the appeal body is structurally independent from the designated
persons who will make the initial decision as to classification.
However, the Departments also note that the ECtHR made the distinction[71]
between processes where the issues to be determined required a
degree of professional knowledge where a decision is made as a
result of discretion in the wider policy framework from a decision
solely on a question of fact. The appeal right to be created will
operate along the lines of the former, and therefore there will
be no breach of Article 6, when considering that judicial review
will also be available against the decision of the appellate body.
Offences
44. Article 6 of the Convention is engaged as follows.
45. The structure of offences under the Video Recordings
Act, which will apply to the classification regime by virtue of
the amendments made by these provisions, provides for a series
of offences. Under those offences the primary burden of proof
rests with the prosecution to establish all the elements of each
offence. Defences are available to an accused requiring the defendant
to prove on reasonable grounds his knowledge or belief of certain
facts or circumstances pertaining at the time of the offence.
46. The Departments have carefully considered these
provisions, bearing in mind that the Video Recordings Act was
enacted in 1984, prior to the Human Rights Act 1998. The Departments
have considered, in particular, whether the offences to be applied
to video games by virtue of the amendments made by this Bill infringe
against the presumption of innocence enshrined in Article 6(2)
of the Convention. As part of this consideration, the Departments
recall that it is established by Strasbourg and domestic jurisprudence
that Member States are permitted to "penalise a simple or
objective fact as such, irrespective of whether it results from
criminal intent or from negligence"[72],
and thus Article 6(2) does not create an absolute prohibition
against burdens of proof being placed on an accused.
47. The gravamen of the offences (the prevention
of the supply and distribution of works, including video games,
in breach of classification systems set up for the protection
of the public, particularly children) is such that it is reasonable
to provide a defence to those offences that rests on the knowledge
of a particular accused at the time he committed the offence.
As such, these provisions do not breach the presumption of innocence
set out at Article 6(2) of the Convention. The following paragraphs
are included, however, to show that, even if it is considered
that the defences are in fact a constituent mental element of
the offence itself that the provisions remain compliant with the
Convention.
48. Rights under Article 6(2) are, notwithstanding
their importance, qualified rights, and it is acceptable under
the Convention to make provisions which might infringe those rights
were they not justified and proportionate. Placing a burden of
proof on an accused to prove his state of knowledge is such a
justified and proportionate measure. An accused charged with an
offence under the Video Recordings Act has a full opportunity
to demonstrate his belief or knowledge at the time of the commission
of the offence. It is reasonable and proportionate to place this
burden upon the accused, given that those matters are within the
accused's knowledge, or are matters to which he, more than the
prosecution, has access. Further, given the legitimate aim being
pursued, the general public interest in maintaining the robustness
of the classification system particularly to protect children
from access to inappropriate material, and the nature of the penalties
to which a person convicted of one of the offences would be subject,
placing a burden of proof on an accused as to his reasonable belief
is proportionate. For these reasons, these provisions do not amount
to a breach of the presumption of innocence set out at Article
6(2) of the Convention.
Enforcement of classification provisions
49. Article 8 is potentially engaged as follows.
Section 17 of the VRA sets out entry, search and seizure provisions.
These measures would arguably amount to interferences with the
right to respect for private life.
50. Article 8 is a qualified right. It is acceptable
under the Convention to interfere with such rights provided that
the interference is in the public interest and in accordance with
the law. The purpose of these provisions is to prevent crime and/or
to protect the rights of others. Judicial authorisation governs
the use of the powers set out in section 17 of the VRA; a justice
of the peace must authorise a constable to enter and search premises
and he can only do so if he is satisfied on oath that there are
reasonable grounds for suspecting that an offence under the Act
is being committed, and that there is evidence that the offence
is or has been committed are on those premises. A constable may
only seize property in these circumstances if he has reasonable
grounds to believe that that property may be required as evidence
in relation to criminal proceedings under the Act. The VRA sets
out adequate and effective safeguards to ensure that there is
no abuse of the powers, and that the law governing the searches
and subsequent seizure of property is clear, accessible and subject
to judicial oversight. In those circumstances, the provisions
amount to an acceptable balance between Article 8 rights, and
the public interest in upholding, by criminal sanction if appropriate,
the classification system.
51. Article 1 of the First Protocol is potentially
engaged as follows. Section 21 of the VRA provides for the forfeiture
of any video recording where a person is convicted of any offence
under the Act and a court orders that the goods are to be forfeited.
The forfeiture of goods would arguably amount to an interference
with the rights enshrined by Article 1 of the First Protocol.
52. Rights under Article 1 of the First Protocol
are qualified rights. It is acceptable under the Convention to
interfere with such rights provided that the interference is prescribed
by law and is necessary in the public interest. Where a criminal
offence has been committed and goods seized that were the subject
of those proceedings, it is in the public interest to dispose
of such property to further prevent the commission of offences
and the spread of illegal material. The court cannot make a forfeiture
order unless it gives the owner of the goods (or any person with
an interest in the goods) an opportunity to be heard or to say
why the order should not be made. An order cannot be made until
after the time to appeal against a conviction has expired and,
if an appeal has been instituted, that appeal has been determined.
This provision represents an acceptable balance between the private
rights of persons adversely affected by the loss of their possessions
through forfeiture and the public interest in the proper operation
of the classification system and the enforcement of that system.
Copyright licensing (clauses 42 and 43 and
Schedule 2)
The granting of licences in relation to orphan
works and rights
53. The Article which is potentially engaged by this
measure is Article 1 of the First Protocol.
54. Article 1 of the First Protocol is potentially
engaged as follows. Section 116A of and paragraph 1A of Schedule
2A to the Copyright Designs and Patents Act 1988 (CDPA) which
will be introduced by clause 42 and Part 2 of Schedule 2 will
allow the Secretary of State to make regulations for the authorisation
of licensing bodies and other bodies to license the use of orphan
works or rights (which will be defined in Regulations, see below).
The compulsory licensing of an orphan work or right is potentially
an interference with the rights of the unidentified or untraced
right holder.
55. To the extent that Article 1 of the First Protocol
is engaged, it is a qualified right, and interference with this
right is compatible with the Convention if prescribed by law and
necessary in the public interest. This measure strikes an appropriate
balance between the private interests of right holders in controlling
use of their works or rights, and the public interest in allowing
the use of works or rights where consent cannot be obtained because
the right holder cannot be identified or traced. Section 116A(6),
also introduced into the CDPA by clause 42, gives the Secretary
of State power to make regulations determining when a work is
classified as an orphan work and when it ceases to be so. Paragraph
1A(6) of Schedule 2A, introduced by clause 42(2) and Part 2 of
Schedule 2, gives the Secretary of State power to make regulations
determining when performers' rights are classified as orphan rights
and when they cease to be so. It is intended that such regulations
will impose adequate checks to ensure that works or rights are
not so classified when the right holder can be identified and
contacted and so is capable of giving consent to the use of their
work or rights. Secondly, the Secretary of State may by regulations
made under section 116A(3) of and paragraph 1A(3) of Schedule
2A to the CPDA introduced by clause 42 and Part 2 of Schedule
2 provide for the treatment of royalties collected, including
holding money for the owner of the orphan work or rights, should
they subsequently be identified, allowing compensation for use
which they have not authorised. Finally, the Secretary of State
has powers under section 116A(4) of and paragraph 1A(4) of Schedule
2A to the CDPA introduced by clause 42 and Part 2 of Schedule
2 to determine through regulations the rights and obligations
in respect of an orphan work or rights if the owner of the work
is subsequently identified. It is in the public interest that
orphan works and rights should be available to the public, subject
to safeguards for that owner should he subsequently be identified,
which can be provided by regulations.
Extended licensing
56. Section 116B of and paragraph 1B of Schedule
2A which is introduced into the CDPA by clause 42 and Part 2 of
Schedule 2 provides for the Secretary of State to authorise extended
licensing schemes. It is doubtful that Article 1 of the First
Protocol is engaged in relation to the rights of a non-member
of a licensing body whose works are licensed by that body under
an extended licensing scheme because that right holder can opt
out of the scheme. If Article 1 of the First Protocol is engaged,
the measure is compatible with the Convention because it strikes
an appropriate balance between the interests of the right holder
in controlling use of their works, and the public interest in
users having access to simplified licensing systems for use of
copyright works and performers' rights.
The regulation of licensing bodies and bodies
that are licensed to use and authorise the use of orphan works
and rights
57. The Articles which are potentially engaged by
this measure are Article 6 and Article 1 of the First Protocol.
58. Licensing bodies license the use of copyright
or performers' rights owned by their members, collect in royalties
and distribute these to members after deducting the expenses of
collection. The Secretary of State will have powers under section
116C , Schedule 1A and paragraph 1C of Schedule 2A to the CDPA
all introduced by clause 42 and Part 2 of Schedule 2 to make regulations
requiring licensing bodies to adopt a code of practice if they
are authorised to license orphan works or rights or to carry out
extended licensing or where it appears to the Secretary of State
that their self-regulation fails to protect the interests of right
owners, licensees, prospective licensees or members of the public.
59. The Secretary of State will also have powers
to determine through regulations made under section 116A(5) of
and paragraph 1A(5) of Schedule 2A to the CDPA, again introduced
by clause 42 and Part 2 of Schedule 2, that a person shall cease
to be authorised to license the use of orphan works or rights
or a licensing body shall cease to be authorised to carry on extended
licensing where it has failed to comply with requirements in those
regulations. The Secretary of State will have powers under paragraph
2(2) of Schedule 1A, introduced by clause 42(2) and Part 1 of
Schedule 2, to make regulations determining when the regulatory
requirements cease to apply to a licensing body that is not authorising
use of orphan works or rights or carrying on extended licensing.
There is nothing inherent in the powers introduced by this clause
that could be challenged as a breach of the Convention. Compatibility
with the Convention will depend on the circumstances and use of
the powers.
60. Article 6 and Article 1 of the First Protocol
are potentially engaged as follows. The imposition of regulatory
requirements on a licensing body so that it is not able to continue
with its licensing activities unless it complies with that regulation
may be a determination of civil rights and obligations within
the meaning of Article 6. Similarly, where a licensing body has
been authorised to license the use of orphan works or rights or
to carry on extended licensing, the removal of that authorisation
and the rights attaching to it may be a determination of civil
rights and obligations. The requirements of Article 6 are met
because a licensing body will be able to apply for judicial review
of any decision to impose regulation or to remove authorisation.
The same considerations apply to the powers under regulations
to remove an authorisation from a body other than a licensing
body to use or to authorise the use or orphan works. That is,
such a body will be able to apply for judicial review of any decision
to remove authorisation.
61. Article 1 of the First Protocol is a qualified
right. Interference with the right is compatible with the Convention
if in accordance with the law and necessary in the public interest.
This measure strikes an appropriate balance between the rights
of licensing bodies to operate freely and the public interest
in ensuring that their business practices are transparent and
take proper account of the interests of licensees and, where relevant,
the members they represent and the general public.
62. The removal of the right to license the use of
orphan works or rights or to operate an extended licensing scheme
would similarly amount to an interference with rights conferred
by Article 1 of the First Protocol. Those rights will be established
in detail in regulations, which will set out the circumstances
under which the rights can be exercised. The jurisprudence of
the European Court of Human Rights has made clear that, where
a right is granted, it does not amount to a deprivation of that
right if it is withdrawn when exercised in a manner which is inconsistent
with conditions which made the exercise of that right possible[73].
Imposition of penalties
63. Paragraph 3 of Schedule 1A which is introduced
into the CDPA by clause 42(2) and Part 1 of Schedule 2 will allow
the Secretary of State to make regulations to impose penalties,
including financial penalties, on a licensing body if it fails
to comply with a Code of Practice imposed under the Schedule.
Any such penalty may amount to a determination of civil rights
or a criminal charge under Article 6 of the Convention. The nature
of the penalty will be determined by the regulations made by the
Secretary of State in exercise of the power taken. At that time,
it will be necessary to consider whether the extra protections
in article 6(2) and 6(3) of the Convention apply, and how they
are met when the Regulations are made. These Regulations may provide
for a right of appeal to the Copyright Tribunal against the imposition
of a penalty; an appeal to such an independent and impartial tribunal
is compliant with Article 6. There is nothing inherent in the
powers introduced by this clause that could be challenged as a
breach of the Convention. Compatibility with the Convention will
depend on the circumstances and use of the powers.
Provisions in relation to Public Lending Right
(clause 44)
64. The Article which is potentially engaged by this
measure is Article 1 of the First Protocol.
65. Article 1 of the First Protocol is potentially
engaged as follows. The measure amends the Secretary of State's
power under the Public Lending Right Act 1979 (PLRA) to make Regulations
determining works to be included under the Public Lending Right
Scheme, with the effect that such Regulations can include non-print
works. Expansion of eligibility under that Scheme will involve
the inclusion of works not otherwise included. Interference with
copyright holders' rights will potentially occur because copyright
holders newly included in the Scheme will no longer be able to
prohibit or licence the lending (and in the case of soft-copy
works, the limited non-permanent electronic copying necessary
for that lending) of such works by libraries. Article 1 of the
First Protocol will not be engaged until any Scheme amendments
are made by Regulations under the expanded power, but paragraph
63 is included to demonstrate that, at the time at which the power
would be used, it is assessed that no breach of Article 1 of the
First Protocol will in fact take place.
66. Article 1 of the First Protocol is a qualified
right, and interference with that right is compatible with the
Convention if in accordance with the law and necessary in the
public interest. The exercise of this measure strikes an appropriate
balance between the private interests of copyright holders, and
the public interest in permitting the extension of the works covered
by the Scheme at a time when there is an increasing demand for
the lending of books in formats other than in printed and bound
format (audio books, for example). Furthermore, the Scheme provides
that copyright holders will be compensated for the loss of the
power to contract individually with public lending libraries for
remuneration on a "rate per loan" basis.
Conclusion
67. In view of these considerations, it is considered
that the Digital Economy Bill is compatible with the Convention.
November 2009
68 Case C-275/06, http://curia.europa.eu/jurisp/cgi-in/gettext.pl?where_&lang_en&num=79919870C19060275&doc=T&ouvert=T&seance=ARRET Back
69
Handside v UK (1979) 1 EHRR 737. Back
70
[2007] LGR 1. Back
71
In paragraph 46 of its judgment. Back
72
Salabiaku v France (1988) 13 EHRR 379, at paragraph 27. Back
73
See, for example, Gudmundsson v Iceland, (1996) 21 EHRR CD89. Back
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