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Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]


Digital Economy Bill [HL]

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(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.

(4)   

The assessment and steps that the Secretary of State may direct

5

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

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relation to a particular type of internet access service; and

(c)   

steps to prepare a proposed technical obligations code.

(5)   

Internet service providers must give OFCOM any assistance that

OFCOM reasonably require for the purposes of complying with any

direction under this section.

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(6)   

The Secretary of State must lay before Parliament any direction under

this section.”

11      

Obligations to limit internet access

After section 124G of the Communications Act 2003 insert—

“124H   

 Obligations to limit internet access

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(1)   

The Secretary of State may at any time by order impose a technical

obligation on internet service providers if the Secretary of State

considers it appropriate in view of—

(a)   

an assessment carried out or steps taken by OFCOM under

section 124G; or

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(b)   

any other consideration.

(2)   

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.

(3)   

The order may also specify—

(a)   

the criteria for taking the technical measure concerned against a

30

subscriber;

(b)   

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

to be taken.”

12      

Code by OFCOM about obligations to limit internet access

After section 124H of the Communications Act 2003 insert—

35

“124I   

 Code by OFCOM about obligations to limit internet access

(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.

40

(2)   

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

initial obligations code made under section 124D.

 
 

Digital Economy Bill [HL]

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(3)   

A code under this section may—

(a)   

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

section 124D(4)(a)to (f)); and

(b)   

make other provision for the purpose of regulating the technical

obligations.

5

(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

10

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

15

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

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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 subsection (2));

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(b)   

that it makes any provision about contributions towards

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

section 124L;

(c)   

that it makes any other provision that the Secretary of State

requires it to make;

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(d)   

that the provisions of the code are objectively justifiable in

relation to the matters to which it relates;

(e)   

that those provisions are not such as to discriminate unduly

against particular persons or against a particular description of

persons;

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(f)   

that those provisions are proportionate to what they are

intended to achieve; and

(g)   

that, in relation to what those provisions are intended to

achieve, they are transparent.

(2)   

The requirements concerning enforcement and related matters are—

40

(a)   

that OFCOM or another person has, under the code, the

functions of administering and enforcing it, including the

function of resolving copyright infringement disputes;

(b)   

that any such other person is sufficiently independent of

internet service providers and copyright owners;

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Digital Economy Bill [HL]

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(c)   

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

determining subscriber appeals;

(d)   

that that person is sufficiently independent of internet service

providers, copyright owners and OFCOM;

(e)   

that there are adequate arrangements under the code for the

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costs of the carrying out by a person mentioned in paragraph (a)

or (c) of functions in relation to the code to be met by internet

service providers and copyright owners; and

(f)   

that provision is made, in accordance with subsection (3), for

the appeal to the First-tier Tribunal of determinations of

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subscriber appeals.

(3)   

The provision mentioned in subsection (2)(f) is provision—

(a)   

enabling a determination of a subscriber appeal to be appealed

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

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

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(b)   

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

it, to—

(i)   

withdraw a technical measure;

(ii)   

confirm a technical measure;

(iii)   

take any steps that a person administering or enforcing

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the code could take in relation to the act or omission

giving rise to the technical measure;

(iv)   

remit the decision whether to confirm the technical

measure, or any matter relating to that decision, to a

person mentioned in subsection (2)(c);

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(v)   

award costs;

(c)   

in relation to recovery of costs awarded by the Tribunal.

(4)   

The provision mentioned in subsection (2) may also (unless the

Secretary of State requires otherwise) include, in particular—

(a)   

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

30

a penalty not exceeding the maximum penalty for the time

being specified in section 124K(2);

(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

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copyright infringement provisions;

(c)   

provision for the taking of a technical measure to be postponed

until a subscriber appeal to a person mentioned in subsection

(2)(c) or an appeal to the First-tier Tribunal has been

determined.

40

(5)   

In this section—

“copyright infringement dispute” means a dispute that—

(a)   

is between one or more copyright owners, internet

service providers or subscribers; and

(b)   

relates to an act or omission in relation to a technical

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obligation or the technical obligations code;

“subscriber appeal” means an appeal by a subscriber against—

(a)   

the proposed taking of a technical measure against a

subscriber; or

(b)   

the taking of a technical measure against a subscriber.”

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Digital Economy Bill [HL]

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14      

Enforcement of obligations

After section 124J of the Communications Act 2003 insert—

“124K   

 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

5

under section 124G(5), as they apply in relation to a contravention of a

condition set out under section 45.

(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—

10

(a)   

appropriate; and

(b)   

proportionate to the contravention in respect of which it is

imposed.

(3)   

In making that determination OFCOM must have regard to—

(a)   

any representations made to them by the internet service

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provider;

(b)   

any steps taken by the provider towards complying 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 for remedying the

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consequences of those contraventions.

(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

25

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

approved by a resolution of each House.”

15      

Sharing of costs

After section 124K of the Communications Act 2003 insert—

“124L   

 Sharing of costs

30

(1)   

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

included in an initial obligations code or a technical obligations code

about payment of contributions towards costs incurred under the

copyright infringement provisions.

(2)   

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

35

(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.

(3)   

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

40

(a)   

provision about costs incurred before the provision is included

in an initial obligations code or a technical obligations code;

 
 

Digital Economy Bill [HL]

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(b)   

provision for payment in advance of expected costs (and for

reimbursement of overpayments where the costs incurred are

less than expected);

(c)   

provision about how costs, expected costs or contributions must

be calculated;

5

(d)   

other provision about when and how contributions must be

paid.”

16      

Interpretation and consequential provision

(1)   

After section 124L of the Communications Act 2003 insert—

“124M   

 Interpretation

10

In sections 124A to 124L and this section—

“apparent infringement”, in relation to a copyright infringement

report, means the infringement of copyright that the report

states appears to have taken place;

“copyright infringement list” has the meaning given in section

15

124B(2);

“copyright infringement provisions” means sections 124A to 124L

and this section;

“copyright infringement report” has the meaning given in section

124A(3);

20

“copyright owner” means—

(a)   

a copyright owner within the meaning of Part 1 of the

Copyright, Designs and Patents Act 1988 (see section

173 of that Act); or

(b)   

someone authorised by that person to act on the

25

person’s behalf;

“copyright work” has the same meaning as in Part 1 of the

Copyright, Designs and Patents Act 1988 (see section 1(2) of that

Act);

“initial obligations” has the meaning given in section 124C(1);

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“initial obligations code” has the meaning given in section

124A(2);

“internet access service” means an electronic communications

service that—

(a)   

is provided to a subscriber;

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(b)   

consists entirely or mainly of the provision of access to

the internet; and

(c)   

includes the allocation of an IP address or IP addresses

to the subscriber to enable that access;

“internet service provider” means a person who provides an

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internet access service;

“IP address” means an internet protocol address;

“subscriber”, in relation to an internet access service, means a

person who—

(a)   

receives the service under an agreement between the

45

person and the provider of the service; and

(b)   

does not receive it as a communications provider;

“technical measure” has the meaning given in section 124G(3);

 
 

Digital Economy Bill [HL]

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“technical obligation” has the meaning given in section 124G(2);

“technical obligations code” means a code for the time being in

force under section 124I.”

(2)   

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

functions), after paragraph (i) insert—

5

“(ia)   

preparing a report under section 124F;

(ib)   

carrying out an assessment, taking steps or providing a report

under section 124G;”.

(3)   

In Schedule 8 to that Act (decisions not subject to appeal to the Competition

Appeal Tribunal), after paragraph 9 insert—

10

“9A        

A decision relating to any of sections 124A to 124M or to anything

done under them.”

17      

Power to amend copyright provisions

In Part 7 of the Copyright, Designs and Patents Act 1988 (miscellaneous and

general) after section 302 insert—

15

“Prevention or reduction of online infringement of copyright

302A    

Power to amend Part 1 and this Part

(1)   

The Secretary of State may by order amend Part 1 or this Part for the

purpose of preventing or reducing the infringement of copyright by

means of the internet, if it appears to the Secretary of State appropriate

20

to do so having regard to technological developments that have

occurred or are likely to occur.

(2)   

The following provisions apply to the power conferred by this section.

(3)   

Subsections (4) to (6) do not limit that power.

(4)   

The power may be exercised so as to make new provision or to amend

25

or repeal provision (whenever made).

(5)   

The power may be exercised so as to—

(a)   

confer a power or right or impose a duty on any person;

(b)   

modify or remove a power, right or duty of any person;

(c)   

require a person to pay fees.

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(6)   

The power includes power to—

(a)   

make different provision for different cases;

(b)   

make transitional or saving provision;

(c)   

make any consequential amendment, repeal or revocation of

provision (whenever made) contained in or made under an Act.

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(7)   

The power does not include power to create or modify a criminal

offence.

(8)   

An order under this section must be made by statutory instrument.

(9)   

Before making any order under this section the Secretary of State must

consult such persons who the Secretary of State thinks likely to be

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Digital Economy Bill [HL]

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affected by the order, or who represent any of those persons, as the

Secretary of State thinks fit.

(10)   

A statutory instrument containing an order under this section may not

be made unless a draft of the instrument has been laid before and

approved by a resolution of each House of Parliament.”

5

Powers in relation to internet domain registries

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Powers in relation to internet domain registries

After section 124M of the Communications Act 2003 insert—

“Powers in relation to internet domain registries

124N    

Notification of failure in relation to internet domain registry

10

(1)   

This section applies where the Secretary of State—

(a)   

is satisfied that a serious relevant failure in relation to an

internet domain registry is taking place or has taken place, and

(b)   

wishes to exercise the powers under section 124O or 124Q.

(2)   

The Secretary of State must notify the internet domain registry,

15

specifying the failure and a period during which the registry has the

opportunity to make representations to the Secretary of State.

(3)   

There is a relevant failure in relation to an internet domain registry if—

(a)   

the registry, or any of its registrars or end-users, engages in

prescribed practices that are unfair or involve the misuse of

20

internet domain names, or

(b)   

the arrangements made by the registry for dealing with

complaints in connection with internet domain names do not

comply with prescribed requirements.

(4)   

A relevant failure is serious, for the purposes of this section, if it has

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adversely affected or is likely adversely to affect—

(a)   

the reputation or availability of electronic communications

networks or electronic communications services provided in

the United Kingdom or a part of the United Kingdom, or

(b)   

the interests of consumers or members of the public in the

30

United Kingdom or a part of the United Kingdom.

(5)   

In this section and sections 124O to 124Q—

“end-user”, in relation to an internet domain registry, means a

person who has been or wants to be allocated an internet

domain name that is or would be included in the register

35

maintained by the registry;

“internet domain” means an internet domain indicated by the last

element of an internet domain name or by that element together

with one or more of the preceding elements of the name;

“internet domain registry” means a relevant body that—

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(a)   

maintains a register of all of the internet domain names

that belong to a particular internet domain, and

 
 

 
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