| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
I hope that the Minister will reflect on this. I do not see any nods or winks, but I always live in hope. In the mean time, I beg leave to withdraw the amendment.
20 Jan 2010 : Column 1015
118: Clause 8, page 11, line 7, at end insert-
"( ) that, on appeal, the burden of proof lies with the copyright owner;"
Lord Clement-Jones: My Lords, in moving Amendment 118, I shall speak to Amendments 119, 189 and 190. I hope that the Minister will be instantly sympathetic to at least the first limb of these amendments, which fall into two parts and refer forward to another similar provision later on, in Clause 13. The first relates to the burden of proof, which is faced by a subscriber on the appeal mechanism. It is very important that when these matters come to appeal-and it will, I suppose, be about the evidence that is available-it is absolutely clear that the onus is on the copyright owner to demonstrate that there has been a breach of copyright and that, therefore, enforcement measures are appropriate. That will become increasingly important, particularly if, looking forward, Ofcom decides that the initial obligations code does not provide enough weaponry for the copyright owners and that technical measures will need to be adopted. The burden of proof will become even more important in future, because, after all, the initial obligations code is precisely that-it is the very first step towards enforcement of copyright. It does not seem to me to be at all unreasonable that the copyright owner should be expected to justify the allegations and produce the evidence. This goes right to the heart of the consumer confidence issue in this Bill; it is absolutely appropriate that it should be explicit in the Bill that the copyright owner in the first instance, in these appeals, has to demonstrate that they own the copyright, that there has been an infraction or infringement and that they have the evidence to prove it. All that will, I hope, be common ground between all noble Lords in this debate. I hope that the Minister will accept at least that first limb.
As for the subscriber appeals and their cost, under the draft order, which we discussed in the previous sitting, we talked about the costs of notification. In square brackets, the Government were saying that they thought it would be roughly 75 per cent for the copyright owners and 25 per cent for the ISPs. There is a strong view among the ISPs, which these amendments are designed to advocate, that that goes too far when talking about the cost of subscriber appeals. That split of 75 per cent and 25 per cent is fine with the set-up costs for notifications, and so on, but a case is being made by the mobile operators, which have rather different cost structures and software requirements, as well as more difficult circumstances with their hardware and software, that that is unduly generous to the copyright owners. The better regulation principles of the Cabinet Office require that the costs of regulation on business as a whole should be kept to a minimum, be proportionate to the desired outcome and, according to its six principles of pricing and recovery, embody both that of cost causation and distribution of benefits.
It is true that in these circumstances it is the copyright owners who stand to benefit from these mechanisms. It seems, certainly to those who wish to see this
20 Jan 2010 : Column 1016
The Bill should make it clear that ISPs can recover all their reasonably incurred costs in this respect from copyright owners, or indeed under the order. They have a strong case; they should not be making that extra contribution. I shall be interested to hear what the Minister has to say on the first limb of these amendments and on the second. I beg to move.
Lord Howard of Rising: My Lords, the noble Lord raises some important questions about the appeal process, both the appeal against the initial obligations process and in the case where technical measures are established and imposed.
The burden of proof is a particularly interesting point. It is, after all, very hard to prove a negative. We have already heard that if the subscriber takes certain reasonable steps, it will be considered a defence against further allegations of infringement of copyright. Does that mean that on appeal it is up to the subscriber to prove that he did attempt to protect his subscription? Will the rights-holder have to produce any further evidence than that contained in the original copyright infringement report to uphold the claim against the subscriber?
As ever, we return to the matter of costs. Under the draft SI, the division between the copyright owners and the internet service providers is suggested to be 75 per cent to 25 per cent. How was that figure arrived at? The Explanatory Notes merely suggest that most of the costs should be borne by the copyright owner. The final figure appears to be very much the result of heavy lobbying from both sides. The copyright owners want a 50/50 split while the internet service providers want none of the costs. The Government seem to have made a final decision just to split the difference and have an easy life.
That, of course, is rather different from the suggestions in some of the supporting fact sheets. One suggested that the establishment of the appeal process should be 50/50 and the running costs should be apportioned according to who brought the appeal. Is that idea now discarded?
I have still not quite got my mind around why internet service providers should pay anything. They are providing the communication link but have no knowledge of what goes down that link; indeed, if they knew, that would raise privacy issues. Perhaps the Minister could explain this to the House.
The Earl of Erroll: My Lords, it is important that the subscriber does not have to get into the complicated process of deciding whether or not someone already owns the copyright. I had not realised until I was briefed the other day that copyright is an incredibly tortuous thing when you start to enforce it internationally and you take into account the Berne convention as well as the location of the servers or the people who might be uploading, as we used the word earlier, while the information is being downloaded elsewhere.
20 Jan 2010 : Column 1017
On top of that, some subscribers will not have the money to appeal and they will just have to pay up, which will open them up to bullying tactics if we do not accept Amendment 119. It is a strange notion if poor-I mean "poor" not in terms of being bullied but in terms of having no money-subscribers should have to pay the cost of appeals when they need their internet connections in order to connect to government services to receive benefits. We have to have a system in which the subscriber does not pay. It is a further complication and why it will be difficult to make the Bill work in the real world.
5 pm
Lord Young of Norwood Green: My Lords, I will first remark on Amendments 118 and 189, in answer to the noble Lord, Lord Clement-Jones. These amendments aim to make it completely clear that it is the copyright owner who should prove that the infringement of the copyright took place. I absolutely agree that that is where the burden of proof lies. The copyright holder must be able to substantiate that if the whole process is to have real credibility. There is no difference between us in that respect.
I appreciate the intent behind the amendments and certainly agree that it is important that the position of the subscriber is protected. However, we do not think that the amendment is necessary. The point to be remembered is that the copyright owner will have already provided the evidence that will form the basis of the copyright infringement report. It will be for the appeals body, and the First-tier Tribunal where appropriate, to assess that evidence, assuming that there is an appeal, against the counter arguments of the subscriber. It will then decide whether to uphold the appeal or not. That seems perfectly fair to me.
I reassure the noble Earl, Lord Erroll, that we have no intention of making the appeal scenario one in which people cannot afford to appeal. We said in a previous contribution that we intend this to be a modest cost merely to deter what we might describe as frivolous appeals. If the subscriber is successful, the money will be refunded anyway. Certainly, we agree with him that the regime should not deter perfectly innocent subscribers from receiving justice.
Similarly, Amendments 119 and 190 would ensure that the cost of any such appeal was borne solely by the copyright owner. I suggest that it is right to leave decisions on who bears the cost to the statutory instrument that will be issued as a result of Clause 15 of the Bill, which deals with the sharing of costs. A number of noble Lords have referred to this and I was asked to justify the figures. I make a plea to noble Lords not to get bogged down in the debate about 75:25 and whether it should be 60:40 or whatever. It is a working assumption. The proportion is not an exact science-we are not claiming that. We are clear that the costs should be shared and that the bulk of the costs should sit with the copyright owners, but there is merit in hearing the views of industry and others in the consultation.
The argument about why ISPs should bear any cost is threefold. It gives them an incentive to minimise the cost of sending notifications-here I am addressing
20 Jan 2010 : Column 1018
We do not expect to be involved in costs in relation to mobile operators because we doubt that there will be enough infringements to breach the threshold and to fall inside the scope of this provision. That is our current assessment. The noble Lord shakes his head. If he has any more accurate information, we would be delighted to receive it and to respond accordingly.
The noble Lord, Lord Howard, asked about a subscriber who had taken defensive measures. In the easiest case, if they had taken defensive measures we assume that there would be no more allegations against them. A worst-case scenario might be where they had taken the measures that they had been advised would be sufficient to defend them, applying a range of software, and were able to demonstrate that they had done so, but somebody had still managed to infiltrate their network. We are clearly talking hypothetically, but we have ranged over what is a reasonable defence more than once in Committee and we have tried to give a reasonable assurance on this.
We do not think that the statutory instrument's ability to apportion costs should be constrained where it is deemed fair and appropriate. The draft that we provided shows that we envisage that it might include a contribution from internet service providers. I have given the reasons why. There is a legitimate argument about whether the appeals process should be entirely free to the subscriber, or whether there might be a refundable fee to deter frivolous appeals. As I tried to reassure the noble Earl, Lord Erroll, it would certainly need to be accessible to all, which might well argue for the appeal to the appeals body being free to the subscriber. That is for consideration in light of discussion of Clause 15 and the accompanying draft statutory instrument. In light of those explanations and assurances, I invite the noble Lord to withdraw the amendment.
Lord Lucas: My Lords, my hearing is getting thin, as I thought that the noble Lord referred to prisoners' appeals. I hope that we have not quite reached that point. He did, I am sure, say earlier that the copyright owner would already have provided evidence that they owned the copyright. I cannot see that anywhere in the Bill. It is an important part of this amendment. In other words, the copyright owner must establish that they are entitled to pursue the person under the Bill. Surely it has to be the copyright owner who establishes that. I cannot see it provided for at an earlier stage,
Lord Young of Norwood Green: I think that we indicated that that would be part of the code. I am looking for inspiration from the Box. I said that I thought we had indicated that it would be part of the code; I am getting an affirmatory nod.
Baroness Howe of Idlicote: My Lords, I may have completely misunderstood but I am still a little confused by listening to these exchanges. If there is a slightly
20 Jan 2010 : Column 1019
Lord Young of Norwood Green: My Lords, we have not described it as a slightly informal appeal process. In fact, we have said the opposite: it will be a formal appeal process. In answer to the question about where the burden of proof lies, maybe I am going too far in responding. Either there is or there is not an infringement. One would not expect someone to be slightly pregnant; they are or they are not. That is, I think, the situation that we would be in. We are not, as we have indicated, expecting the cost of the appeal to be significant. We want to keep it to a minimum. We do not want to deny people the opportunity to appeal. It will be a formal but not-again, I am checking with the Box-judicial process. That should keep costs down.
Lord Clement-Jones: My Lords, I thank the Minister for his response and thank those who entered the lists during this debate. The noble Lord, Lord Howard, made a very interesting contribution, particularly when he said that he thought that the Government might be opting for an easy life. I thought that probably the Minister would not be taking the Digital Economy Bill through the House if he was really after an easy life, but I appreciate the comment.
This is a paradox. The Minister knows full well what the intent is, which is that there needs to be certainty in the way in which this procedure operates. He knows that there is a great danger here. As a lawyer, I know that there is a big difference between the onus of proof being on the copyright owner and having a rebuttable presumption of something in those circumstances. A rebuttable presumption means that, after you have had three notifications of CIRs, it is perfectly possible for the appeals person, or Ofcom, whoever it happens to be, to say, "It appears to us that you have had three of these letters, so show us now why we should not cut you off"-that is, if the technical measures code was in place-rather than saying, "You have had three of these, so let's hear all the evidence again and make sure that I have got it absolutely right that the copyright owner owns the relevant material". Then he goes through all the steps of uploading or downloading, or whatever the subscriber is claimed to have done. If subscribers are to be confident about these two codes-the Minister and the Government are fully aware of the controversy surrounding the Bill in terms of arguments about the freedom of the internet-adding these words about the onus of proof would make a massive difference to public appreciation of the way in which the Bill operates and would instantly demonstrate the fair way in which these two codes are intended to operate.
The Minister may say that this is not a judicial process, but in terms of the consequences it is a quasi-judicial process, because this person or Ofcom will be in a position to adjudicate. They will make a judgment about whether certain measures should be
20 Jan 2010 : Column 1020
On the second limb-the costs argument-the Minister is on rather more familiar ground. Many of us would not argue with a 25:75 split precisely because of the Minister's arguments about incentives. We should give people the incentive not to have to issue too many notifications, but the boot is entirely on the other foot when we are talking about appeals procedures. We need an incentive for creative copyright owners to make jolly sure that they get their facts right when they start prosecuting subscribers. However, "prosecuting" is the wrong word; I meant to say when they start alleging that subscribers have breached their copyright. That is where the incentive should be and that is why I suggested that we should not follow the pattern set out in the rest of the order but break out that element about subscriber costs in terms of appeals and have a different allocation.
Lord Young of Norwood Green: I am trying to be helpful. We have deliberately said that the 75:25 split is not set in stone. However, I shall take away the noble Lord's point about the appeals procedure. I shall not re-enter the argument about burden of proof because I think that we have rehearsed it sufficiently. We have made it absolutely clear that there will need to be a real evidential base. That will be part of the code and people will have to provide a real evidential base to sustain the fact that there has been a copyright infringement. I referred on a previous occasion to an audit trail. I plead with the noble Lord not to dismiss that lightly. It was a serious attempt in a previous debate to reassure him.
5.15 pm
Lord Clement-Jones: I will not dismiss that assurance from the Minister. However, I will point out that, under the order, you would need different allocations for different costs. At the moment it is done in a blanket way for all qualifying costs. There has to be new language to allow differentials in different areas of qualifying costs. I hope that the Minister will reflect seriously before Report, because burden of proof will be one of the most important issues that we will come back to. In the mean time, I beg leave to withdraw the amendment.
120: Clause 8, page 11, line 8, after "is" insert "a properly constituted tribunal under the Tribunals, Courts and Enforcement Act 2007, and is"
20 Jan 2010 : Column 1021
Lord Lucas: My Lords, I shall speak also to Amendment 125. In the context of this part of the Bill, I have a good deal of sympathy with the Government's idea that this should be a non-judicial process. After all, if a subscriber loses, they get tipped into a judicial process in the civil courts. It does not, in this part of the Bill, impose too great a burden on the subscriber to have this as a relatively informal process. However, in the same structure-if the noble Lord wishes, I will table additional amendments later in the Bill-we are looking at what happens if we get into technical measures. Then, the consequences of losing under the appeal arrangements are that you are likely to have your internet connection severed or greatly reduced, which can be an extreme penalty if you run a business from home, as many people do. The process begs to have a properly constituted appeal and indeed a route to pursue beyond that.
We will come back to technical measures. They are quite loosely defined and can have a big impact on a person. If we are talking about taking technical measures against someone who is providing a number of people with their internet connections and who has fallen foul of the process, there can be a knock-on effect. Under those circumstances, the decision should be properly taken, with a clear route of appeal.
I come back to my fondness for another Bill that the Government took through not so long ago, which became the Tribunals, Courts and Enforcement Act. It set up and regulated tribunals so that they became easier to understand and to deal with. Now they function well in many aspects of our society, and consider school appeals, appeals about special educational needs, tenancy disputes and appeals in many other areas. It is an established way of dealing with disputes where the consequence of losing the appeal is substantial. We should offer a potentially very large number of our citizens proper access to justice before we tip them into something like the technical measures that are envisaged in the Bill.
The Minister has persuaded me that the second part of Amendment 125 is inappropriate. There should be a cost to appeal, otherwise everyone will do it and the system will get clogged up. It should be flexibly designed to ensure that the level of appealing is rational. That the appeal mechanism should be just and properly set up is something that we should all aim for. I hope that, if I cannot persuade the Minister, I will be able to persuade my Front Bench of that and come back to it on Report.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |