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

Digital Economy Bill [HL]


Digital Economy Bill [HL]

20

 

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

included in an initial obligations code or a technical obligations code

5

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—

(a)   

copyright owners;

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(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—

(a)   

payment by a copyright owner of a contribution towards the

15

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—

(a)   

provision about costs incurred before the provision is included

20

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);

(c)   

provision about how costs, expected costs or contributions must

25

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

been laid before Parliament and approved by a resolution of each

30

House.”

17      

Interpretation and consequential provision

(1)   

After section 124M of the Communications Act 2003 insert—

“124N   

 Interpretation

In sections 124A to 124M and this section—

35

“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

124B(2);

40

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

and this section;

“copyright infringement report” has the meaning given in section

124A(3);

“copyright owner” means—

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Digital Economy Bill [HL]

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(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

person’s behalf;

5

“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);

“initial obligations code” has the meaning given in section

10

124A(2);

“internet access service” means an electronic communications

service that—

(a)   

is provided to a subscriber;

(b)   

consists entirely or mainly of the provision of access to

15

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

internet access service;

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“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

person and the provider of the service; and

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(b)   

does not receive it as a communications provider;

“subscriber appeal” means—

(a)   

in relation to an initial obligations code, an appeal by a

subscriber on grounds specified in the code in relation

to—

30

(i)   

the making of a copyright infringement report;

(ii)   

notification under section 124A(4);

(iii)   

the inclusion or proposed inclusion of an entry

in a copyright infringement list; or

(iv)   

any other act or omission in relation to an initial

35

obligation or an initial obligations code;

(b)   

in relation to a technical obligations code, an appeal by

a subscriber on grounds specified in the code in relation

to—

(i)   

the proposed taking of a technical measure; or

40

(ii)   

any other act or omission in relation to a

technical obligation or a technical obligations

code;

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

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

45

“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—

“(ia)   

preparing a report under section 124F;

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Digital Economy Bill [HL]

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(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—

“9A        

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

5

done under them.”

18      

Preventing access to specified online locations for the prevention of online

copyright infringement

In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A

insert—

10

“97B    

Preventing access to specified online locations for the prevention of

online copyright infringement

(1)   

The High Court (in Scotland, the Court of Session) shall have power to

grant an injunction against a service provider, requiring it to prevent

access to online locations specified in the order of the Court for the

15

prevention of online copyright infringement.

(2)   

In determining whether to grant an injunction under subsection (1), the

Court shall have regard to the following matters—

(a)   

whether a substantial proportion of the content accessible at or

via each specified online location infringes copyright,

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(b)   

the extent to which the operator of each specified online

location has taken reasonable steps to prevent copyright

infringement content being accessed at or via that online

location or taken reasonable steps to remove copyright

infringing content from that online location (or both),

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(c)   

whether the service provider has itself taken reasonable steps to

prevent access to the specified online location,

(d)   

any issues of national security raised by the Secretary of State,

(e)   

the extent to which the copyright owner has made reasonable

efforts to facilitate legal access to content,

30

(f)   

the importance of preserving human rights, including freedom

of expression, and the right to property, and

(g)   

any other matters which appear to the Court to be relevant.

(3)   

An application for an injunction under subsection (1) shall be made on

notice to the service provider and to the operator of each specified

35

online location in relation to which an injunction is sought and to the

Secretary of State.

(4)   

Where—

(a)   

the Court grants an injunction under subsection (1) upon the

application of an owner of copyright whose copyright is

40

infringed by the content accessible at or via each specified

online location in the injunction, and

(b)   

the owner of copyright before making the application made a

written request to the service provider giving it a reasonable

period of time to take measures to prevent its service being used

45

to access the specified online location in the injunction, and no

steps were taken,

 
 

Digital Economy Bill [HL]

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the Court shall order the service provider to pay the copyright owner’s

costs of the application unless there were exceptional circumstances

justifying the service provider’s failure to prevent access despite

notification by the copyright owner.

(5)   

In this section—

5

“copyright owner” includes a licensee with an exclusive licence

within the meaning of section 92 of this Act,

“infringing content” means content which is produced or made

available in infringement of copyright,

“online location” means a location on the internet, a mobile data

10

network or other data network at or via which copyright

infringing content is accessible,

“operator” means a person or persons in joint or sole control of the

decisions to make content accessible at or via an online location,

and

15

“service provider” has the meaning given to it by section 97A(3) of

this Act.

(6)   

Subsections (1) to (5) shall come into force on such day as the Secretary

of State may by order appoint not less than 3 months and not more than

12 months after subsections (1) to (5) have been notified to the

20

Commission of the European Communities (“the Commission”) in

accordance with the obligations of notification imposed by Directive

98/34/EC.

(7)   

If any comments are received from Member States of the European

Union or the Commission after subsections (1) to (5) have been so

25

notified and the Secretary of State reasonably considers amendments

are necessary to give effect to such comments, he may make the

necessary regulations within the period referred to in subsection (6)(a),

to amend subsections (1) to (5).”

Powers in relation to internet domain registries

30

19      

Powers in relation to internet domain registries

After section 124N of the Communications Act 2003 insert—

“Powers in relation to internet domain registries

124O    

Notification of failure in relation to internet domain registry

(1)   

This section applies where the Secretary of State—

35

(a)   

is satisfied that a serious relevant failure in relation to a

qualifying internet domain registry is taking place or has taken

place, and

(b)   

wishes to exercise the powers under section 124P or 124R.

(2)   

The Secretary of State must notify the internet domain registry,

40

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 a qualifying internet domain

registry if—

 
 

Digital Economy Bill [HL]

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(a)   

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

prescribed practices that are unfair or involve the misuse of

internet domain names, or

(b)   

the arrangements made by the registry for dealing with

complaints in connection with internet domain names do not

5

comply with prescribed requirements.

(4)   

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

adversely affected or is likely adversely to affect—

(a)   

the reputation or availability of electronic communications

networks or electronic communications services provided in

10

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

(b)   

the interests of consumers or members of the public in the

United Kingdom or a part of the United Kingdom.

(5)   

In subsection (3) “prescribed” means prescribed by regulations made

by the Secretary of State.

15

(6)   

Before making regulations under subsection (3) the Secretary of State

must consult such persons as the Secretary of State considers

appropriate.

(7)   

In this section and sections 124P to 124R—

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

20

means a person who has been or wants to be allocated an

internet domain name that is or would be included in the

register maintained by the registry;

“qualifying internet domain registry” means a relevant body

that—

25

(a)   

maintains a relevant register of internet domain names,

and

(b)   

operates a computer program or server that forms part

of the system that enables the names included in the

register to be used to access internet protocol addresses

30

or other information by means of the internet;

“registrar”, in relation to a qualifying internet domain registry,

means a person authorised by the registry to act on behalf of

end-users in connection with the registration of internet domain

names;

35

“relevant body” means a company formed and registered under

the Companies Act 2006 or a limited liability partnership;

“relevant register of internet domain names” means a register of—

(a)   

the names of second level internet domains that form

part of the same UK-related top level internet domain,

40

or

(b)   

the names of third level internet domains that form part

of the same UK-related second level internet domain;

“second level internet domain” means an internet domain

indicated by the last two elements of an internet domain name;

45

“third level internet domain” means an internet domain indicated

by the last three elements of an internet domain name;

“top level internet domain” means an internet domain indicated

by the last element of an internet domain name.

 
 

Digital Economy Bill [HL]

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(8)   

An internet domain is “UK-related” if, in the opinion of the Secretary of

State, the last element of its name is likely to cause users of the internet,

or a class of such users, to believe that the domain and its sub-domains

are connected with the United Kingdom or a part of the United

Kingdom.”

5

20      

Appointment of manager of internet domain registry

(1)   

After section 124O of the Communications Act 2003 insert—

“124P   

Appointment of manager of internet domain registry

(1)   

This section applies where—

(a)   

the Secretary of State has given a notification under section

10

124O to a qualifying internet domain registry specifying a

failure,

(b)   

the period allowed for making representations has expired, and

(c)   

the Secretary of State is satisfied that the registry has not taken

the steps that the Secretary of State considers appropriate for

15

remedying the failure.

(2)   

The Secretary of State may by order appoint a manager in respect of the

property and affairs of the internet domain registry for the purpose of

securing that the registry takes the steps described in subsection (1)(c).

(3)   

The person appointed may be anyone whom the Secretary of State

20

thinks appropriate.

(4)   

The appointment of the manager does not affect—

(a)   

a right of a person to appoint a receiver of the registry’s

property, or

(b)   

the rights of a receiver appointed by a person other than the

25

Secretary of State.

(5)   

The Secretary of State must—

(a)   

keep the order under review, and

(b)   

if appropriate, discharge all or part of the order.

(6)   

The Secretary of State must discharge the order on the appointment of

30

a person to act as administrative receiver, administrator, provisional

liquidator or liquidator of the registry.

(7)   

The Secretary of State must discharge the order before the end of the

period of 2 years beginning with the day on which it was made (but this

does not prevent the Secretary of State from making a further order in

35

the same or similar terms).

(8)   

When discharging an order under this section, the Secretary of State

may make savings and transitional provision.

(9)   

The Secretary of State must send a copy of an order made under this

section to the registry as soon as practicable after it is made.

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(10)   

In subsection (4), “receiver” includes a manager (other than a manager

appointed by the registry) and a person who is appointed as both

receiver and manager.

(11)   

In subsection (6)—

 
 

Digital Economy Bill [HL]

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“administrative receiver” means an administrative receiver within

the meaning of section 251 of the Insolvency Act 1986 or Article

5(1) of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/

2405 (N.I. 19));

“administrator” means a person appointed to manage the affairs,

5

business and property of the registry under Schedule B1 to that

Act or Schedule B1 to that Order.

124Q    

Functions of manager etc

(1)   

An order under section 124P may make provision about the functions

to be exercised by, and the powers of, the manager.

10

(2)   

The order may, in particular—

(a)   

provide for the manager to have such of the functions of the

registry’s directors as are specified in the order (including

functions exercisable only by a particular director or class of

directors), and

15

(b)   

provide for any of the registry’s directors to be prevented from

exercising any of those functions.

(3)   

The order may make provision about the remuneration of the manager,

including in particular—

(a)   

provision for the amount of the remuneration to be determined

20

by the Secretary of State, and

(b)   

provision for the remuneration to be payable from the property

of the registry.

(4)   

In carrying out the functions conferred by the order, the manager acts

as the registry’s agent.

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(5)   

The Secretary of State may apply to the court for directions in relation

to any matter arising in connection with the functions or powers of the

manager (and the costs of the application are to be paid by the registry).

(6)   

On an application under subsection (5) the court may give such

directions or make such orders as it thinks fit.

30

(7)   

In this section “the court” means—

(a)   

in England and Wales, the High Court or a county court,

(b)   

in Scotland, the Court of Session or the sheriff, and

(c)   

in Northern Ireland, the High Court.

(8)   

Where the registry is a limited liability partnership, this section applies

35

as if references to a director of the registry were references to a member

of the limited liability partnership.”

(2)   

In section 192(1)(d) of that Act (appeals against decisions of the Secretary of

State), after sub-paragraph (ii) insert—

“(iia)   

an order under section 124P;”.

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(3)   

In section 402(1) of that Act (powers of the Secretary of State to make orders

and regulations), after “conferred by” insert “section 124P and”.

 
 

 
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